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HomeMy WebLinkAbout00402C - HERITAGE APARTMENTS MIHATA LOW INCOME AFFORDABLE HOUSING OPA 'A o aa�l C 4s....... ._ I� Fk=d FIMAU r vO ue 8410 �7 f FREE RECORDING REQtJRSTED ) PURSUANT TO GOVERNMENT ) DOG M 20m0— �5d 10t0 CODE SECTION 27A3 ) �>• «:«a tw:ae LOW 40rIft Recording requested by and ) o.enss«t aa >w svwsaa"' orYY d when recorm retum to: ) c..n. Oars a ameraar CALIFORNIA HOUSING FINANCE AGENCY ) Office of Genets)Counsel ) 1121 L Street. Suite 300 Sacramento.CA 95814 LDi (Space"t A R -- CALMORNtA HOUSING FWANCE AGENCYSUWRDINATIOK — KP CHFA Derdopmatt No. 93-0 " ♦s.a NOTICE: THIS SURORDINATM AGREEMENT RESULTS IN YOUR SECURITY INTEREST C IN THE PROPERTY BECOMING SURIECf To AND OF LOWn PRIORITY THAN TILE LBIN(S)OF SOME OTHER OR LATER SECURITY IN TEREST(S). G THIS AGREEMENT is entered into by and between The Conummity Redevelopment Agency of The City of Palm Springs.California.a public agency.corporate and politic(`the Agency').Pains Verdes Villas. a California corporation('Developer'). and the California Housing Fbm m Agency.a public imununemality and a political subdivision of the Stato of California CCHFA') in cmmoction with a loan to fi mace a multifamily midemiai mate) housing project on real property located in Palm Springs. California and mote $ particularly described on Exhibit'A'attached bereso and incorporated herein by this reference(the"Project"). S Er. 1TAL5 i A. WHEREAS.CHFA bus previously amok a persnartent Tat mortgage: loan to lartovrer in die ss amount of Five Million and NO/100 Dollam 43.00D.000.00)(rh'CHFA Loan')evidenced by a promissory now and somed by a deed of tout recotded on the Project on May 30. t995.as Itwmment No. 97134 of the Official Records of Riverside County.California(tbe -Official "Rmords'x said reed of tent stml hereafter l be exerted to as the "CHFA Deed of Trust').and B. WHEREAS. CHFA is restricting fhe project pumma to a regulatory agramm recorded Mauch 30. 1993.as Ismnmsem No. 97133 of the Official Records('CHFA Regubtory Agrxmem'). and C. WHEREAS. Developer and dm A&mc>< have entered into a certain Owm Participation Agmemeob deed for references purposes February 19. 1992. and a certain Regulatory Agreement and I..f CWA TI ML4►ALM VranrS VUAS aefoo nos smwlmm -I- f�4 I t r_ "- laration of Covenants and Restrictions. dated)amtary 19. 19%. and recorded in the Official Records on r� i March 9. 1994 as lm umem No.09M (collectively. the'Use Restriction'): and r� D. WHEREAS. Developer.the Agency and CHFA have previously entered into a Subordination Agroaoem.dated January 30. I995.and rocotded in the Official Records as Instrument No.97135(the'Prior r Subordimaam Agreement')whereby the Use Restriction were subordinated to the CHFA Deed of Trust and the CHFA Regulatory Agmemem: and r-r E. WHEREAS.Developer is currently in default of its obligations to CHFA.which obligations are r_r secured by the CHFA Dad of Trust. and r l F.• WHEREAS.Devdoper and CHFA have agreed to modify she toms of the loan from CHFA to Developer which modification shall cure Developer's default and avoid a foreclosure of the CHFA Deed of I Trust:and — - I G. WHEREAS. in conjunction with the modification of the loam from CHFA to Developer. evidenced by two promissory totes. Developer and CHFA have executed a document entitled 'California Hawing Finance Agency Modification of Deed of Trust. CHFA Development No. 934)06-S (the 'Modification')which modifics the CHFA Dad of Trust,and a document entitled'California Housing Finamce Agency Amendment to Regulatory A(reennem.CHFA Development No. 93-006-S'(the 'Ame dmem')which amends the CHFA Regulatory Agreeroem.which documents arc recordod comenWratseously herewith in Me official Records (the CHFA Deed of Trust. the CHFA Regulatory Agreement. Or Modification and the Amendment shall hereinafter collectively be referred to as the 'CHFA Doctumems'):and O H. WHFRFAS, it is a legal requirement pursuam to California Health and Safety Cade Section 51335(e) and a condition precedent to CHFA modifying the CHFA Doan that the CHFA Documents have priority over the Use Restriction.and 1. WHEREAS. it is beneficial to all the parties to this Agreentem that CHFA agree to modify the CHFA Loan, and the parties are willing to subordimte the Use Restrictions in order that the CHFA Iran be modified. NOW THEREFORE. in consideration of the mutual betteft eft s accruing to the parties berm and other � valuable consideration.the receipt and legal sufficiency of which is hereby acknowledged. it is hereby declared. understood and agreed as follows: 1. The above m at(ons are incorporated herein. 2. The Use Restriction are hereby subordinated to fist CHFA Documents including all extension. modification or additional advances made hereunder. Hereafter,the CHFA Documents shall unconditionally be, and remain at all times. lien and etcumnMunas on the Project prior and superior to the lien and encumbrances of the Use Restrictions. and to all rights and privileges of the parties thereunder.and the lien and encumbrances of the Use Restriction.together with all rights and privileges of the panties thereunder shall hereby be wbjccted and made suhordirtate to the liens and encumbrances of the CHFA Documents. In any event of conflict between the Agency obligations and the CHFA obligation, the CHFA obligations shall prevail. A judicial or nonjWicW foreclosure of the CHFA Dad of Tm a shall result in the Use Restriction being extinguished. �rrr�rrrsr�r ���� i rnr•71 Sl7A VAUla WAVES VILLAS 61fN lOF SAlrASmltA .2. i I` t: I — i I - Lt III 3 3. This agrcem w is for the benefit of the parties betew and is enforceable by airy party agsu st r any suocesrots in au mst or assigns of any posy hereto. 4. 1f any party shaft take any legal acuun to enforce the arms and conditions of This Agreement. the prevailing party or parties shall be emitled to mcova legal coats and reasonable ammey"s fees from the f other party or parties. S. Amendments to this Agreement must be in writing and signed by all parties hereto. ' j ` 6. This Agreement shall be construed in accordance with and be governed by the laws of California. I 7. This Agreement may be cumned in several ca umparts.each of which stroll be an original and -- .- all of which shall coastfnue one and the same umiumem. 8. 1n the event any provision of this Agreement shall be held invalid or um dmteable by any taut I, of eompeom jurisdiction. it will not invalidate or render wtmforceabte any other pan of this Agrxmem. 9. The Agent' hereby represents and warrants to CHFA that at the time of execution of this ON Agrcemem. the Developer is in substantial compliance with its obligations to the Agency under the terms of the Use Restrictions,and than the Agency has read and understands the CHFA Documems and agrces that in W the event of conflict of terms betwcen the CHFA Docmnems and Use Restrictions.the CHFA Domuatts shelf 0 prevail. 10. The Agency. Developer and CHFA hereby agree to be bmw by all the terms. condition and 0 covenants of this Agreement. Q 11. Except to the extem mrcons•mcan with this Agreermnt. the Prior Subordination Agreement remains in fu8 fora and effect. I IN WITNESS WHEREOF, the parties hereto have executed dus Agreement which stall become _ eflecsive upon recordation. 8 I I PALOS VERDES V111-4S.a Caffornfa CALIFORNIA HOUSING FINANCE AGENCY corporation V / ' z_ By: _ /� By: Tbomu W. Tomhmon Theresa A. Parker Pne"I m Executive Director THE COMMUNITY REDEVELOPMENT AGENCY "n OF THE MY OF PALM SPRINGS A ST: LLQL&4--� - - - Assistant Secretary Executive Dir r t-i Reviewed A Approved by Agency Counsel r. < AC104OWLEDGMENTS cnn4+t Waa PAUA vsnas va.ras AYPrtQVLA 8Y Skit .AAo„*4My Rl r (n - a Iiru TUF sete.�atM -3 BY RRS He C a I IL 3. This agreeemew is for the benefit of the panics hereto and is enforceable by any patty against any successors in interest or assigns of any patty hereto. r 4. If any party shall take any legal action to enforce the terms and coodkiota of this Agteernnu. +� the prevailing party at patties shalt be entnh d to recover legal tots and reasonable attorneys fees from the othet party or parties. S. Amndmpas to this Agreement must be in writing and signed by all panics hereto. n 6. This Agreement shall be construed in accordance with and be governed by the laws of California. U 7. This Agreement may be executed in several counterparts,each of which shall be an original and n all of which shall commit:one and the sane irZwurnent_ 1 9. In the event any provision of this Agreement shall be held invalid or ureaforceabic by any court of compeoaa jurisdiction. in will not invalidate or rendef unenforceable any other part of this Agreement. 9. The Apocy hereby represents and warrants to CHFA that at the time of execution of this Agreement. the Developer is in substantial compliance with its obligations to the Agency under the terns of the Use Restrictions. and that the Agency has read and understands the CHFA Pmumi:ms and agrees that in the event of conflict of terms between the CHFA Documents and Use Restrictions,the CHFA Documents shall W prevail. O 10. The Agency. Developer and CHFA hereby agree to be bound by all the terns.conditions and covenants of this Agreement. 0 0 IL Except to the extent inconsistent with this Agreement, the Prior Subordination Agrecnem remain; in full force and effect. IN WITNESS WHEREOF, the panics hereto have executed this Agreement which shall become effective upon reconisuoa. 8 PAI.OS VEBDES VILLAS, a CALIFORNIA HOUSING FINANCE AGENCY California cm poratim By. By: _ •4 � Y Thomas W_ TOMinwn Theresa A- President Executive Duvctot A. THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS By: Titlei 11011111®1111 ACKNOWLEDGMENTS tq rlaA rl 9"9A P,wr vmanrS mucus :0 arau,nu sunratu •3• (� M d i 1 AME }� � C y ro Ll STATE OF CAUFORN tst COUNTY OF mac. i v On before me. �•. e' c_ --� L�.4�c ..E,- - �.T� yersOrwey appeared, T i-.. ^c.�. _; T _.. , t: a • ` 0 .perswmpy known to me for Moved to mb on 1e basis 0/SKMlabt"&Aft"Ce)tD be tie WsorlWwtz,e namte{*rJam— 0 shed to the wihm#*VturKrd and acknowledged to me that he/shBrtWexeeWed the same in N%Awjt�m r authowedcapaot DWY..and that by hm/bw�naturets)on the mtrument the pe+so^Sst Or the ermay upon behalf of Wurh the persorM acted.execLW dte"Irumerd. WITNESS my hand and otkW seat- Im Too of Dooummt!tie of DpcA~ No ofPages OthersQ taaaas not advtavdedged QAUPOMM ALL4URPOW $t000f California cownyd Riverside on ber oma. Elaine L. Yedekind, Notary Public r'� rrww.rwaMa•woaw.�rwr1 dyed David R. Ready a Patricia A. Sanders ---------------------- rr.00aua.an P k/wwnbma—dl*'t7paNepo llMVrtM�igNIM06to bt VI anwf¢1 Mines mntejllWmsAm rbod to to wderir kMVwmnt and adaw ASW to me Brats AM&Vby esemAed to am hvUOAIW*k awwrized ape ),and Bat by SNOWWookaft on Ba twour otopanon,W. a Bw endly uponhadi d widaR be Bw parao0(bj estad. tLAMIR L;�MZaa ezeaned the kabunent WRNEW my hand and offkx d seed. a..ov.s _ 1 fAW 3.36% - — - ssr,rwe c np�b ar�rrbncrnpeepar ms aer pow,ab�b bprratMr�erq m b anonrre ar000wrpawe 6mdYararrmwlwrOlNddnll�b bwmswrr mwrarc `. it wwWdort of AWmhed Oorumeatt E-- Tae or Type of Dommma: pomonerd Cvme: Number of Pages: Sfotega)Oear Ttmr Named Above: CapaeityOes)Claimed by 8lyna(s) ftners Nam-- sgrwra Name: r !caporsto Omw � OlBar Mao): Tfae(s): �C Parkwr—:.Lkdgd C General ❑ Pa*w—..Lw t d C Demand morn y44Z AtOan 4K%d i TwaW G TrwOes Quadten or Camavaaor 7 C uwdad a conservator Odw .. �sn�e�w. n poor dwr.e nrr v s � l stew is PAWUW&a BOWISPAPOSINOW •w•rr+w�a.•vs�n..r ror,w.fiq.wa c.ew+w rssrer w.r rr wwr•YrAip �■..�„�{®„ ev o ere ' Mom/ ALL PURPOSE ACKNOWLEDGEMENT STATE OF CAKIFORNIA 3 } SS COUNTY OFSACRAMENTO } Fir On before me,sane Broad . Notary Public, persotnlly Broad". +4�Ix � f�i�ft ilJrl�t�fil�� Personally known to me or proved to me an the basis of satisfactory evidrooe to be the KrwWdfwhose mmcW is subscribed to to the within wskumem and acknowledged to me dud b0shel*rt exeaned the same m L6lberhladir k authorized capacky(id), and that by Wher/their signamr m on the instrument the personal, or the entity upon behalf of which the persotdal aped,executed the instn gym. _ I WITNESS my band and ofFicW seat. ro� JANE SROAD'MAY 10 Come.a fl 1lK99 N Public to and for said w r� t.rm ac s.ttroa c' c' c' i I i t �rrrrrrr��rr em I 1 ffiIIDii •A` C THE LARD REFBRRSD TO IS SITUATED IN THE STATE Of CALIFORNIA. COUNTY OF RIVERSIDE. CITY OF PALM SPRINCS AND IS DESCRIBED AS FOIiA08: ' PARCEL 2. OF PARCEL MAP N0. 27312 OS FILE TO SOON 175 PACES 98 THROM 100. �"1 INCLUSIVE, OF PARCEL MAPS, RECORDS OF RIVERSIDE CODNIY. CALIFORNIA; u EXCEPT THE RIGHT TO ANY DEPOSITS OF OIL. GAS OR OTHER HYDROCARBON SUBSTANCES, VRDIRLYINO TAR ABOVE DESCRIBED LAND, PROVIDED 8014VER. TRAT SOCt RESERVATION SMALL r NOT BE DEEMED TO GIVE ANY RIOT TO MM UPON SAID FIRMISES FOR THE DEVELOPMFITI OF ANY SUCK VATER. OJL, GAS OR OTHER HYDROCARBON SUBSTANCES AS RESERVED IN THE DEED MON SECURITY FIRST NATIONAL DARK OF LOS ANGELES. RECORDED JUNK 23. 1936 IN WON 283 PAGE 302 OF OFFICIAL RECORDS OF RIVERSIDE COMM, CALIFORNIA. i C C C f 1 I Rose Mihata First Amendment AGREEMENT 9402C R 1256, 6-16-04 FIRST AMENDMENT TO OWNER PARTICIPATION AGREEMENT This First, endmzn erariicipation Agreement(the"First Amendment")is entered into on thiV�"�day 2004 ("Effective Date"), by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS,a public body,corporate mud politic ("the Agency") and ROSE MIHATA, an individual ("Participant") with respect to the following: RECITALS WHEREAS, the Agency has established an affordable housing setaside fund in accordance with Section 33000 et. seq. of the California Health and Safety Code("CRL"),which are earmarked for the acquisition, construction, or rehabilitation of affordable housing to benefit the community; and WHEREAS,the Heritage Apartments, constructed in 1979 as mature adult units for low-to moderate-income seniors,was in significant need of rehabilitation,including improving the energy efficiency of the units, security and amenities of the complex, and in accordance with the requirements of the CRL,the Agency and Participant entered into that certain Owner Participation Agreement on June 7,2000("Agreement")committing$450,000 to the rehabilitation of the Site, as that term is defined in the Agreement, in return for having up to half(68) of the units for made available for "low-income"residents in the Site; and WHEREAS, Participants at the time of entering the Agreement, Rose Mihata and Scott Timberlake, desired to participate with the Agency in its affordable housing program and agreed to dedicate the units for low-income residents in the Heritage Apartments, with the understanding that the restrictions be based on 80% of median income; and WHEREAS, pursuant to Section 3.13 of the Agreement authorizing an assigmnent among the individual members of Participant, Scott Timberlake has assigned all ofhis right,title and interest to the Agreement and the Site to Rose Mihata, who remains the sole property owner; and WHEREAS, Health& Safety Code §50053 (b)(3)requires that Affordable Rent for Lower Income Households be the product of 30 percent times 60 percent of the area median income adjusted amnially for family size appropriate to the unit; and WHEREAS,the parties wish to uphold Participant's understanding to restrict income levels of the restricted units to 80%of area median income rather than 60%of area median income; and Heritage Apartments First Amendment tothe OPA _1_ WHEREAS,to comply with Health&Safety Code §50053 (b)(3) and §50053(b)(4) the Agreement must be amended to restrict the units to Moderate Income Households, with Participant agreeing to maintain the rents to 80% of area median income. NOW, THEREFORE,based upon the foregoing recitals and the terms, conditions, covenants, and agreements contained herein, the parties hereto agree as follows: Section 1. Participant and Agency agree that Section 2.0 of the Agreement shall be amended as follows: The teen'Participant" shall mean ROSE MIHATA,an individual,having her offices at 300 South Calle El Segundo, Palm Springs, California 92262, and any permitted successors or assignees of Participant as provided herein. Participant has represented to Agency that it is the fee owner of the Site. Accordingly, Participant qualifies as an "Owner Participant"within the meaning of the Redevelopment Plan and the California Community Redevelopment Law (Health & Safety Code §33000 et seq). The term "Participant"includes any legally permissible assignee or successor to the rights,powers, and responsibilities of Participarnt hereunder, in accordance with Section 3.15 of this Agreement. Section 2. Owner and Agency agree that the Section 8.0 of the Agreement, General Provisions, shall be amended as follows: With a copy to: Aleshire & Wyrrder, LLP 18881 Von Kannan Ave. Suite 400 Irvine, California 92612 Attn: David J. Aleshire Section 3. Owner and Agency agree that the Agreement Containing Covenants Affecting Real Property shall be amended in the manner shown in the First Amendment to Agreement Containing Covenants Affecting Real Property, a copy of which is attached hereto as Exhibit 1. Section 4. Due Execution. The person(s) executing this First Amendment on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this First Amendment on behalf of said party, (iii)by so executing this First Amendment, such party is formally bound to the provisions of this First Amendment, and (iv)the entering into this First Amendment does not violate any provision of any other agreement to which said party is bound. Section 5. Full Force and Effect. The parties further agree that, except as specifically provided in this First Amendment, the terns of the Agreement shall remain unchanged and in full force and effect. Heritage Apartments First Amendment to the OPA -2- IN WITNESS WHEREOF,the parties hereto have executed this First Amendment as of the date of execution by the Agency. "Agency" / COMMUNITY REDEVELOPMENT Attest AGENCY OF THE CITY OF PALM I -- SPRINGS gency�Seereta r a ��-may Ai Approved as to form: Executive Direetor'- j ALES �c WYNDER, LLP L---R• L Atton"e s r the Agency "Participant" ROSE MIHATA, an individual ", _,:<) h�f iEJ,� l--:>�u�:?r,,;;,�p�:d+lii u ,�;I �,r�,� � �•'� � " Rose Mihata '•/i;" 'rid `i' `" '' r^�'� P,�la� �,p��_��'�!' Hey itage Apartments First Amendment to the OPA _3_ Exhibit 1 FIRST AMENDMENT TO AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY [see following pages] Heritage Apartments First Amendment to the OPA _Q_ RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: Community Redevelopment Agency of the City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92263 Attn: Executive Director (SPACE ABOVE THIS LINE FOR RECORDING USE) (EXEMPT FROM RECORDING FEE PER GOV. CODE § 6103) FIRST AMENDED AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY THIS FIRST AMENDED AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY ("Amendment") is entered into this day of July, 2004 ("Effective Date"), by and between THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body corporate and politic ("Agency"), and ROSE MIHATA, an individual, ("Owner"), with reference to the following: A. Owner is the fee owner of record of the parcels that comprise that certain real property (the "Site") located in the City of Palm Springs, County of Riverside, State of California, legally described in the attached Exhibit No. "L" B. Owner entered into that certain Agreement Containing Covenants Affecting Real Property ("Agreement") an Owner Participation Agreement ("OPA") with Agency, dated as of June 7, 2000, concerning the development and operation of the Property, which OPA is on file with the Agency as a public record and is incorporated herein by reference. All defined terms used herein shall have the same meaning as set forth in the OPA unless otherwise stated. C. Pursuant to Section 3.13 of the OPA authorizing an assignment among the individual members of Participant, Scott Timberlake has assigned all of his right, title and interest to the OPA, the Agreement and the Site to Rose Mihata, who remains the sole property owner; and D. Pursuant to that certain First Amendment to the OPA, entered into concurrently with this Amendment, the parties wish to amend the Agreement to uphold Participant's original understanding to restrict income levels of the restricted units to 80% of area median income rather than 60% of area median income. E. To effectuate the amendment to the income restrictions, the parties wish to enter into this Amendment pursuant to the teens hereof. NOW, THEREFORE, AGENCY AND OWNER AGREE AS FOLLOWS: Section 1. The Agreement, at Subsection La entitled "Distribution of Rental Units; Income Eligibility; Rental Cost; Occupancy Limits," shall be amended in its entirety to read as follows, except as so modified, the remaining provisions of Section 1 shall remain unmodified and in full force and effect: a. Distribution of Rental Units; Income Eligibility; Rental Cost; Occupancy Limits. The Site shall contain not fewer than one hundred thirty-six (136) apartment units. Not fewer than one (1) apartment unit for each increment of six thousand six hundred seventeen and 65/100 dollars ($6,617.65), or each portion thereof, of Agency Assistance provided to Participant under the OPA, pursuant to Sections 6.1 and 6.1.1(a), up to a maximum of sixty-eight (68) apartment units shall be made available to eligible persons of Moderate Income or below(the "Affordable Units") as follows: The Affordable Units shall be (A) rented to persons whose amoral household income does not exceed eighty percent (80%) of the median income for Riverside County as published annually by the State of California based on income figures from the United States Department of Housing and Urban Development, and (B) rented to such eligible persons at a monthly rental cost, including utilities, which is not more than the amount derived as follows: (i) thirty percent (30%) of eighty percent (80%) of the annual median income for a two person household for Riverside County as published aimually by the State of California based on income figures from the United States Department of Housing and Urban Development, (ii) divided by 12. Commencing July 1, 2001, the initial maximum monthly rent for the Affordable Units may be adjusted in accordance with the most recent median income figures for Riverside County published by the State of California, and may be adjusted on July 1 of each calendar year thereafter, as may be necessary. The maximum occupancy of each of the dwelling units on the Site, including the Affordable Units, shall be the lesser of (i) two persons per bedroom plus one additional person, or (ii) the maximum number of persons that are permitted to occupy the square footage of the unit under the applicable uniform building and housing code as adopted by the City of Palm Springs ("City") as of the time building permits are issued for the Project. Section 2. Due Execution. The person(s) executing this Amendment on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Amendment on behalf of said party, (iii) by so executing this Amendment, such party is formally bound to the provisions of this Amendment, and (iv) the entering into this Amendment does not violate any provision of any other agreement to which said party is bound. Section 3. Full Force and Effect. The parties further agree that, except as specifically provided in this Amendment, the terms of the Agreement shall remain unchanged and in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date of execution by the Agency. IN WITNESS WHEREOF, Agency and Owner have entered into this Agreement as of the Effective Date. "Agency" COMMUNITY REDEVELOPMENT Attest: AGENCY OF THE CITY OF PALM SPRINGS Agency Secretary By: Approved as to form: Chainnan ALESHI E & WYNDER, LLP Attorneys for the Agency "Owner" ROSE MIHATA, an individual Rose Mihata 627/014084-0012 69989.02 a08/15/00 STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDE ) On 2004, before me, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (SEAL) STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDE ) On 2004, before me, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Heritage Apartments Amendment No.1 to the OPA -2- STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDE ) On 2004, before me, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (SEAL) 1003/013/33120 1 �►- • Heritage Apartments Rose Mihata - OPA AGREEMM #402C R1100, 6-7-00 OWNER PARTICIPATION AGREEMENT THIS OWNER PARTICIPATION AGREEMENT ("Agreement") is made and entered into as of the 7th day of June, 2000 ("Effective Date"), by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic ("Agency"), and ROSE MIHATA, an individual, and SCOTT TIMBERLAKE, an individual (collectively 'Participant"). 1.0 PURPOSE OF THE AGREEMENT The purpose of this Agreement is to effectuate the Redevelopment Plan for the Project Area by improving the Site within the Project Area as well as to assist in providing adequate housing affordable to low income households within the City of Palm Springs ("City"). The development of the Project on the Property within the Project Area and the fulfillment generally of this Agreement are in the best interests of the City and the welfare of its residents and are in accordance with the public purposes and provisions of applicable federal, state, and local laws and regulations, under which the Project has been undertaken and is being assisted. This Agreement is entered into by the Agency pursuant to its authority under the Community Redevelopment Law of the State of California, Health and Safety Code Sections 33000 et seq. (all statutory references herein are to the Health and Safety Code unless otherwise provided); which authorizes the Agency to make agreements with owners, purchasers and lessees of property in the Redevelopment Project Area providing for the development of property in conformity with the Redevelopment Plan, and providing that the Agency retain controls and establish restrictions or covenants running with the land so that the property will be developed, operated, and used in conformity with this Agreement and the Redevelopment Plan (see Sections 33380, 33381, 33437-33439 and 33339). 2.0 DEFINITIONS The following terms as used in this Agreement shall have the meanings given unless expressly provided to the contrary: The term "Affordable Units" shall mean up to sixty-eight (68) rental apartment dwelling units in the Project that are covenanted for affordability, use, and occupancy under the Agreement Containing Covenants, the actual number of which shall be based on the following calculation: One (1) Unit shall be covenanted for each increment of six thousand six hundred seventeen and 65JI00 dollars ($6,617.65), or each portion thereof, of Agency Assistance provided by Agency hereunder up to a maximum of four hundred fifty thousand dollars ($450,000.00), based on the terms and conditions of this Agreement and the Agreement Containing Covenants, including Section 6.3 herein. The term "Agency" shall mean the Community Redevelopment Agency of the City of Palm Springs, a public body, corporate and politic, having its offices at 3200 East Tahquitz Canyon Way, Palm Springs, California 92263. The term "Agency" as used herein also includes 627/014094-0012 69989.02.08/15/00 any assignee of, or successor to, the rights, powers, and responsibilities of the Community Redevelopment Agency of the City of Palm Springs. The term "Agency Assistance" shall have the meaning set forth in Section 6 of this Agreement. The teen Agreement Containing Covenants" shall mean the Agreement Containing Covenants Affecting Real Property referred to in Section 4.1.1 which shall be in the form set forth in Attachment No, 5. The term "Approved Project Plans and Permits" shall mean, collectively, the approved Development Project Plan referred to in Section 3.4, the approved final building plans referred to in Section 3.4, and all other permits and approvals required and issued for the Project as referred to in Section 3.5. The term "City" shall mean the City of Palm Springs, a California municipal corporation, having its offices at 3200 East Tahquitz Canyon Way, Palm Springs, California 92263. The City is not a party to this Agreement and shall have no rights or obligations hereunder. The term "CRL" shall mean the Community Redevelopment Law of the State of California, codified at Health and Safety Code Section 33000 et se . The term "Effective Date" shall mean the latest of the dates set next to the signatures of the parties hereto, after all the parties hereto have signed this Agreement, which latest date shall be inserted into the preamble to this Agreement. The term "Eligible Improvements" shall mean those improvements described in Attachment No. 3 to which the Agency Assistance may be applied, as further provided at Section 6.1 herein. The term "Executive Director" shall mean the individual duly appointed to the position of Executive Director of the Agency. The term "Fiscal Year" shall mean the period from July 1 through June 30. The term "Participant" shall mean ROSE MIHATA and SCOTT TIMBERLAKE, individuals, having their offices at 300 South Calle El Segundo, Palm Springs, California 92262, and any permitted successors or assignees of Participant as provided herein. Participant has represented to Agency that it is the fee owner of the Site. Accordingly, Participant qualifies as an "Owner Participant" within the meaning of the Redevelopment Plan and the California Community Redevelopment Law (Health & Safety Code §33000 et se ). The teen "Participant" includes any legally permissible assignee or successor to the rights, powers, and responsibilities of Participant hereunder, in accordance with Section 3.15 of this Agreement. The term "Participant Expenditure" shall have the meaning ascribed at Section 6.1.1(a) herein. 627/0140W012 _ '2 69989 02 u08/15/00 k The term "Project" shall mean the rehabilitation of the rental apartment complex at the Site which contains one hundred thirty-six (136) units (which shall include a resident on-site manager unit), of which up to sixty-eight (68) units shall be the Affordable Units, related interior and exterior improvements, all designed and constructed in a manner so as to be architecturally compatible with the existing neighborhood as well as functionally efficient in the areas of access, parking, security, and amenities, as more specifically described in the Scope of Development at Attachment No. 3 herein. The Affordable Units shall be restricted in accordance with the terms of this Agreement and the Agreement Containing Covenants. The term "Redevelopment Plan shall mean the Redevelopment Plan for the Baristo- Farrell Redevelopment Project Area which was adopted on May 7, 1986, by the City Council of the City by Ordinance No. 1264. The Redevelopment Project has been amended three times, on December 21,1994 by Ordinance No. 1498, on December 15, 1999 by Ordinance No. 1576, and on May 31, 2000 by Ordinance 1583. The amendment effectuated by Ordinance No. 1583 merged Project Areas within the City, including the Baristo-Farrell Redevelopment Project Area pursuant to Article 16, Section 33485 et seq. of the Health and Safety Code, and the new Project Area is now known collectively as the "Merged Redevelopment Project Area #2". The Redevelopment Plan is scheduled to terminate on May 7, 2026. The Redevelopment Plan is incorporated herein by this reference and is made a part hereof as though fully set forth herein. The term "Release of Construction of Covenants" shall mean the Release in the form attached as Attachment No. 6. The term "Schedule of Performance" shall mean that certain Schedule of Performance attached hereto as Attachment No. 4. The term "Site" shall mean that certain real property consisting of approximately 4.5 acres gross, 3.7 acres net, in the Project Area located at 300 South Calle El Segundo, Palm Springs, California 92262, as specifically described at Attachment No. 2 hereto. The Site is shown on the site map attached hereto as Attachment No. 1. The term "Units" shall mean one hundred thirty-six (136) rental apartment dwelling units on the Site, up to sixty-eight (68) of which shall be the Affordable Units, based upon the provisions of Section 6.3 herein. 3.0 CURRENT OWNERSHIP OF THE SITE; DEVELOPMENT OF THE SITE 3.1 Ownership of the Site Participant hereby represents to Agency that Participant, as of the Effective Date, is the owner of fee title to the Site, as confirmed by a current property title report of the Site, which Participant shall submit to Agency within the time set forth in the Schedule of Performance. 3.2 Physical Condition of the Site Agency shall have no responsibility for, and makes no representation or warranty, express or implied, with respect to the presence of uncompacted fill, the condition of the soil, the 627/0140840012 - 3 - 69989 02.08/15/00 geology, seismology, the presence of any hazardous or toxic substances or materials, or any similar matters. In no event shall Agency have any obligation to cure or correct any physical defects or problems with respect to the Site. It shall be the sole responsibility of Participant to investigate all aspects of the physical condition of the Site, including but not limited to the existence of any hazardous or toxic materials or substances, and earthquake faults or other geologic and seismic hazards. For the purposes of this Agreement, the term "hazardous or toxic substances or materials" shall mean any substance or material identified by the federal government or State of California as hazardous or toxic and included on any list of such substances published by the federal government or State of California. Participant shall indemnify, defend, and hold Agency and City harmless from any claim, suit, or action arising from the presence of any hazardous or toxic substances or materials existing on the Site. This indemnification obligation remain in perpetuity. and shall survive and shall not merge with any grant deed or any other instrument, whether or not recorded. It shall be the sole responsibility of Participant to demolish and clear any improvements on the Site inconsistent with the intended use thereof and to prepare the Site for rehabilitation. It shall be the further responsibility of Participant to comply with all federal, state, and local laws, regulations, and rules regarding environmental compliance subsequent to conveyance and other similar matters, and pay any costs and take any other actions required to prepare the Site for development. 3.3 Evidence of Financial Capability Within the time set forth in the Schedule of Performance, Participant shall submit to Agency's Executive Director evidence reasonably satisfactory to the Executive Director that Participant has the financial resources and commitments necessary for the development of the Project in accordance with this Agreement ("Evidence of Financial Capability"). Participant's complete submittal of the Evidence of Financial Capability shall include one or more of the following as reasonably required by Agency's Executive Director: (i) A copy of the commitment or commitments obtained by Participant to assist in financing the Project, including construction and take-out financing, and a preliminary tax credit reservation or carry-over allocation (if applicable). All copies of commitments submitted by Participant to Agency shall be certified by Participant to be true and correct copies thereof. Each commitment for financing shall be in such form and content reasonably acceptable to the Executive Director as reasonably evidences a firm and enforceable commitment, with only those conditions which are standard or typical for similar lenders involved for similar projects. (ii) If the total costs of that portion of the Project to be paid by Participant exceeds the amount of financing commitments received pursuant to subparagraph (i) of this Section 3.3, Participant shall provide to Agency documentation reasonably satisfactory to Agency's Executive Director to demonstrate that Participant has adequate specific, and identifiable funds committed to cover the difference, including working capital for a period of not less than twelve (12) months after the scheduled date for completion of construction. 62710[4094-0012 69989 02 08/15/00 If the Executive Director shall disapprove such Evidence of Financial Capability, he or she shall do so by written notice to Participant stating the reasons for such disapproval within ten (10) business days following the Executive Director's receipt of Participant's complete submittal. Participant shall have thirty (30) days within which to cure any deficiencies noted in the written notice, unless a longer period of time is agreed upon in writing by the parties hereto prior to the expiration of such thirty (30) day period. In addition, as part of Participant's submittal the Evidence of Financial Capability, the Executive Director may require a project pro forma reflecting adequate cash flow and showing revenues, expenses, debts, etc. 3.4 Development Project Plan. Concurrently with the approval of this Agreement, the Agency has approved the Participant's basic concept drawings. On or before the date set forth in the Schedule of Performance, Participant shall submit to the City final drawings and specifications for development of the Project in accordance with the Scope of Development described at Attachment No. 3, and all in accordance with the City's requirements ("Development Project Plan"). The term final drawings shall be deemed to include site plans, building plans and elevations, grading plans, if applicable, landscaping plans, parking plans, material pallets, a description of structural, mechanical, and electrical systems, and all other plans, drawings and specifications. Final drawings will be in sufficient detail to obtain a building permit. Said plans, drawings and specifications shall be consistent with the Scope of Development and the various development approvals referenced hereinabove, except as such items may be amended by City (if applicable) and by mutual consent of Agency and Participant. Plans, (concept and construction) shall be progressively more detailed and will be approved if said plans are a logical evolution of the plans, drawings or specifications previously approved by the Agency. 3.5 Other City and Governmental Agency Permits. Before commencement of any demolition work or any construction or development of any buildings, structures, or other works of improvement upon the Site, Participant at its own expense shall secure or cause to be secured any and all permits which may be required by City or any other governmental agency with jurisdiction over the Site, including, but not limited to, necessary building permits and all approvals required under the California Environmental Quality Act (CEQA). Failure of Participant to timely obtain all required permits and approvals shall be grounds for termination of this Agreement by Agency in Agency's sole and absolute discretion. Agency shall provide reasonable assistance to Participant in securing these permits, at no cost to Agency; provided, however, that Agency does not warrant or represent that any such approvals shall be granted. 3.6 Cost of Construction Except as specifically provided at Section 6.1, Participant shall bear all costs of preparing and developing the Site and constructing all improvements thereon and in connection therewith, including, but not limited to, any and all costs for demolition, clearance, interim and permanent financing, broker's and leasing commissions, development and building fees and charges, and all 627/014084-0012 _ 5 - 69989.02.08/15/00 } on-site improvements. Participant shall additionally be responsible for designs, plans, calculations, bonding, permitting, and payment of fees for, and installation of, all off-site improvements necessary for the Project. Participant shall be responsible for verifying the adequacy and availability of all utilities. Any upgrades of existing utilities to service the Project shall be the sole responsibility of Participant. 3.7 Construction Schedule: Participant's Progress Resorts Within the time set forth in the Schedule of Performance, Participant shall furnish to the Agency Executive Director a construction schedule indicating completion dates for each portion of work for the Project in accordance with the requirements of the Schedule of Performance ("Construction Schedule"). Subject to Section 8.3, all revisions to the construction schedule shall be approved in advance in writing by Agency's Executive Director. Subject to Section 8.3 herein, Participant shall begin, continue, and complete the construction required of it within the times set forth in the Construction Schedule and the Schedule of Performance. Once construction is commenced, it shall be diligently and continuously pursued to completion and shall not be abandoned for more than twenty (20) consecutive days, except when delays are due to causes beyond the reasonable control and without the fault of Participant, as set forth in Section 8.3 herein. Prior to issuance of the Release of Construction Covenants, Participant shall keep Agency informed of the progress of Participant's construction of the Site upon request of Agency. 3.8 Bodily Injury, Property Damage, and Workers' Compensation Insurance: Indemnification During construction and for a period terminating on May 7, 2026 following the date of recordation of the Agreement Containing Covenants, Participant shall conform to the indemnification and insurance set forth in Section 7.0. 3.9 Rights of Access Prior to the issuance of the Release of Construction Covenants, representatives of Agency, for the purpose of assuring compliance with this Agreement, shall have, in addition to any other rights of access to the Site granted to Agency in this Agreement, the reasonable right of access to the Site, without charges or fees, at normal construction hours during the period of construction to inspect the work being performed by Participant in constructing the Project. Any inspection by Agency shall be performed without interference to the work being done at the Site. Agency shall indemnify, defend, and hold Participant and its officers, agents, representatives, employees, and volunteers harmless from any damage caused or liability arising out of its exercise of this right of access; provided that it is understood that Agency does not by this Section 3.11 assume any responsibility or liability for a negligent inspection or failure to inspect, not shall any inspection by Agency substitute for inspections by the City as may be required by City. 6271014084-0012 _ 6999902 a08/15/00 - 6 1 3.10 Applicable Laws Participant shall carry out the construction of the improvements to be constructed by Participant in conformity with all applicable laws, regulations, and rules of all federal, state, and local governmental agencies with jurisdiction over the Site and the Project, including without limitation applicable labor standards. 3.11 Anti-Discrimination During Construction Participant, for itself and its successors and assigns, agrees that Participant will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, marital status, national origin, or ancestry. 3.12 Taxes, Assessments, Encumbrances, and Liens Participant shall pay prior to delinquency all real estate taxes and assessments properly assessed and levied on the Site. Until the date Participant is entitled to the issuance by Agency of Release of Construction Covenants Participant (a) shall not place or allow to be placed thereon any mortgage, trust deed, encumbrance or lien (except mechanic's liens prior to suit to foreclose the same being filed) not authorized under Section 3.14 of this Agreement or otherwise hereunder, and (b) shall remove or have removed any levy or attachment made on the Site, or assure the satisfaction thereof, within a reasonable time, but in any event prior to a sale thereunder. Nothing herein contained shall be deemed to prohibit Participant from contesting the validity or amounts of any tax, assessment, encumbrance, or lien, nor to limit the remedies available to Participant in respect thereto. 3.13 Prohibition Against Assignment and Transfer The qualifications and identity of Participant are of particular concern to Agency. It is because of those qualifications and identity that Agency has entered into this Agreement with Participant. Accordingly, prior to Agency's issuance of the Release of Construction Covenants with respect to the Site, as provided in Section 3.16 herein, Participant shall not, except as permitted in this Section and Section 3.14 below, assign all or any part of this Agreement or any rights hereunder or in the Site without Agency's prior written approval, which approval shall not be unreasonably withheld. Notwithstanding the foregoing, the following shall not be considered an assignment or transfer and shall not require Agency approval hereunder: (i) Transfers to any entity or entities owned or controlled by Participant or any of its respective members, shareholders or partners, or to any parent corporation or subsidiary corporation of any partner, member, or shareholder of Participant, or to any entity or entities controlled by any of such members, shareholders, or partners. 627/014084-0012 _ 69999 02.08/15/00 - 7 (ii) Transfers resulting from the death or mental or physical incapacity of an individual. (iii) Transfers or assignments in trust for the benefit of a spouse, children, grandchildren, other family members, or for charitable purposes. (iv) Any mortgage, deed of trust, sale and leaseback or other form of conveyance required for any reasonable method of financing the acquisition and/or development of the Site, including all direct and indirect costs related thereto. (v) A sale, conveyance, or transfer of the Site at foreclosure (or a conveyance thereof in lieu of a foreclosure) pursuant to a foreclosure thereof to any lender meeting the requirements of sub-paragraph (iv) above. (vi) A sale or transfer of some or all of Participant's interest in the Site, or any individual parcel thereof, to a lender or real estate investment trust meeting the requirements of sub-paragraph (v) above upon the exercise by such lender of a right to acquire Participant's interest. (vii) The conveyance or dedication of portions of the Site to the City or other appropriate governmental agency for the formation of an assessment district, or the granting of easements or permits to facilitate the development of the Site. (viii) The leasing of the Units. Participant shall deliver written notice to Agency requesting approval of any assignment or transfer requiring Agency approval hereunder. In considering whether it will grant approval to any assignment by Participant of its interest in the Site or any portion thereof, which assignment requires Agency approval, Agency shall consider factors such as (A) the financial strength and capability of the proposed assignees to perform Participant's obligations hereunder and (B) the proposed assignee's experience and expertise in the planning, financing, development, ownership and operation of similar projects. No assignment, including assignments which do not require Agency approval hereunder, but excluding assignments for financing purposes, shall be effective unless and until the proposed assignee executes and delivers to Agency an agreement in form reasonably satisfactory to Agency's attorney assuming the obligations of the assignor which have been assigned. Thereafter, the assignor shall be relieved of all responsibility to Agency for performance of the obligations assumed by the assignee. Participant shall compensate Agency for its actual expenses (not including personnel or overhead expenses) incurred in investigating a proposed assignee's qualifications as a permitted assignee hereunder; provided, however, Participant's compensation to Agency for Agency's legal costs incurred in investigating and reviewing a proposed assignee's qualifications shall not exceed One Thousand Five Hundred Dollars ($1,500.00). Agency shall submit an invoice to Participant requesting compensation for Agency expenses consistent with this paragraph. 627/014084W12 _ 8 69989 02 a08/15/00 t s No lender approved by Agency pursuant to Section 3.14 shall be required to execute an assumption agreement and such lender's rights and obligations hereunder shall be as set forth in Section 3,14. The restrictions of this Section shall terminate upon Agency's issuance of the Release of Construction Covenants. 3.14 Security Financim4; Rieht of Holders 3.14.1 Permitted Encumbrances. Mortgages, deeds of trust, conveyances, and leases-back or any other form of conveyance required for any reasonable method of financing are permitted before Agency's issuance of the Release of Construction Covenants but only for the purpose of securing loans of funds to be used for the construction of improvements on the Site (including both construction and permanent financing), and any other expenditures necessary and appropriate to acquire, lease, or develop the Site under this Agreement. Prior to Agency's issuance of the Release of Construction Covenants, Participant shall not enter into any such conveyance for financing purposes without the prior written consent of Agency's Executive Director, which consent shall be given if such conveyance is for the purposes permitted herein and is given to a financial or lending institution or other reasonably acceptable person or entity capable of performing or causing to be performed Participant's obligations under this Agreement, including without limitation entities owned or controlled by Participant, a pension fund, insurance company, or real estate investment trust. Any disapproval shall be in writing and state the reasons therefor. Failure of Agency to disapprove of such lender within ten (10) days after notice to Agency shall be deemed as approval of that specific request for consent of Agency. If, after and despite Participant's exercise of reasonable diligence to obtain Agency's approval, the Executive Director disapproves the identity of Participant's proposed lender or the terns and conditions of the loan in accordance with the terms hereof, Participant's time for commencement and completion of construction of the Project or such portion thereof which was to have been financed by such lender shall be extended under the Schedule of Performance for that period of time (not to exceed one hundred twenty (120) days) during which Participant is diligently proceeding to procure acceptable alternative financing and submit evidence of such financing to the Executive Director. Agency further agrees to amend the terms of this Agreement if reasonably requested by an approved lender, provided that Agency's rights and remedies hereunder are not materially adversely affected; provided, however, that the foregoing is not intended to restrict or limit the Agency's legislative discretion. 3.14.2 Holder Not Obligated to Construct Improvements. The holder of any mortgage or deed of trust or other security interest authorized by this Agreement shall in no way be obligated by the provisions of this Agreement to construct or complete the improvements or to guarantee such construction or completion; nor shall any covenant or any provision in the deed for the Site be construed so to obligate such holder. Nothing in this Agreement shall be deemed or construed to, permit, or authorize any such holder to devote the Site or any part thereof to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. 627/0140840012 _ 69989 02.08115/00 - 9 • 3.14.3 Notice of Default to Mortgage Deed of Trust or Other Security Interest Holders; Right to Cure. Whenever Agency shall deliver any notice or demand to Participant with respect to any breach or default by Participant in completion of construction of the improvements, Agency shall at the same time deliver a copy of such notice or demand to each approved holder of record of any mortgage, deed of trust or other security interest which has previously requested such notice in writing. Each such holder shall (insofar as the rights of Agency are concerned) have the right, at its option within ninety (90) days after the receipt of the notice, to commence and thereafter to diligently proceed to cure or remedy such default and add the cost thereof to the security interest debt and the lien on its security interest. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to preserve and protect the improvements or construction already begun if holder has elected to undertake construction) without first having expressly assumed Participant's obligations to Agency by written agreement satisfactory to Agency. The holder in that event must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates. Any such holder properly completing such improvements shall be entitled upon written request made to the Agency, to a Release of Construction Covenants from Agency. 3.14.4 Right of Agency to Cure Mortgage Deed of Trust or Other Security Interest Default. In the event of a default or breach by Participant of a mortgage, deed of trust, or other security interest or leaseback or conveyance for financing prior to the issuance by Agency of the Release of Construction Covenants for the Site, Agency may cure the default prior to completion of any foreclosure. In such event, Agency shall be entitled to reimbursement from Participant of all costs and expenses reasonably incurred by Agency in curing the default, which - right of reimbursement shall be secured by a lien upon the Site to the extent of such costs and disbursements. Any such lien shall be subject to: (i) Any mortgage, deed of trust or other security instrument or sale and leaseback or other conveyance for financing permitted by this Agreement; or (ii) Any rights or interests provided in this Agreement for the protection of the holders of such mortgages, deeds of trust, or other security instruments, the lessor under a sale and lease-back, or the grantee under such other conveyance for financing; provided that nothing herein shall be deemed to impose upon Agency any affirmative obligations (by the payment of money, construction or otherwise) with respect to the Site in the event of its enforcement of its lien. 3.15 Right of Agency to Satisfy Liens Prior to the issuance by Agency of the Release of Construction Covenants for the Site, and after Participant has had a reasonable time to challenge, cure, or satisfy any liens or encumbrances on the Site, Agency, after sixty (60) days prior written notice to Participant, shall have the right, but not the obligation, to satisfy any such liens or encumbrances on the Site; 627/014084-0012 _ t 0 _ 69989 02 a08/15/00 l provided, however, that nothing in this Agreement shall require Participant to pay or make provision for the payment of any tax, assessment, lien, or charge so long as Participant in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Site to forfeiture or sale. 3.16 Release of Construction Covenants Upon Participant's satisfactory completion of construction of the Project, Agency, within the time set forth in the Schedule of Performance, shall furnish Participant with a Release of Construction Covenants upon written request therefor by Participant. Such Release of Construction Covenants shall be in a form so as to permit recordation in the Office of the Recorder of the County of Riverside as set forth in Attachment No. 6. The Release of Construction Covenants shall be, and shall so state, a conclusive determination of satisfactory completion of the construction of the Project and of full compliance with the terms of this Agreement relating to such construction. After the date Participant is entitled to the issuance of the Release of Construction Covenants, and notwithstanding any other provisions of this Agreement to the contrary, any party then owning or thereafter purchasing, leasing, or otherwise acquiring any interest in the Site shall not (because of such ownership, purchase, lease, or acquisition) incur any obligation or liability under this Agreement for which such Release of Construction Covenants is issued, except that such party shall be bound by the covenants that survive the issuance of the Release of Construction Covenants, including the covenants contained in Sections 4.1 through 4.5 herein, inclusive, and the surviving covenants set forth in the Agreement Containing Covenants in accordance therewith. Agency shall not unreasonably withhold the Release of Construction Covenants. If Agency refuses or fails to furnish the Release of Construction Covenants after written request from Participant, Agency shall, within fifteen (15) days after such written request, provide Participant with a written statement of the reasons Agency refused or failed to furnish such Release of Construction Covenants. The statement shall also contain Agency's opinion of the action Participant must take to obtain such Release of Construction Covenants. If the reason for such refusal is confined to the immediate availability of specific items or materials for landscaping, Agency shall issue its Release of Construction Covenants upon the posting of a cash deposit or an irrevocable letter of credit in favor of Agency in an amount representing the fair value of the work not yet completed and in a form reasonably acceptable to Agency's attorney. A Release of Construction Covenants is not a notice of completion as referred to in California Civil Code Section 3093. 4.0 USES OF THE SITE 4.1 Use of the Site 4.1.1 Participant covenants and agrees for itself, and its successors and assigns to its interest in the Site, that for the period set forth in the Agreement Containing Covenants, Participant and such successors and assigns shall not devote the Site to uses inconsistent with the 627/0140840012 - 69989 02 a08/15/00 k Approved Project Plans and Permits, this Agreement, or the Agreement Containing Covenants, whichever is the most restrictive. 4.1.2 From the date of issuance of the Release of Construction Covenants until the termination of the affordability restrictions set forth in the Agreement Containing Covenants, Participant shall maintain and shall furnish or cause to be furnished to Agency duplicate originals or appropriate endorsements of insurance or certificates of insurance as set forth in Section 7.0 herein. 4.1.3 In the event that Participant breaches any of the covenants contained in this Section 4.1 or Section 4.2 below, and such default continues for a period of five (5) business days after written notice from Agency (with respect to landscaping, graffiti, debris, waste material, and general maintenance) or thirty (30) days after written notice from Agency (with respect to building improvements), then Agency, in addition to whatever other remedy it may have at law or in equity, shall have the right to enter upon the Site and perform or cause to be performed all such acts and work necessary to cure the default. Pursuant to such right of entry, Agency and/or City shall be permitted (but are not required) to enter upon the Site and perform all acts and work necessary to protect, maintain, and preserve the improvements landscaped areas on the Site, and to attach a lien on the Site, or to assess the Site, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by Agency and/or costs of such cure, including a fifteen percent (15%) administrative charge which shall be promptly paid by Participant to Agency upon demand. 4.2 Maintenance of the Site. Participant, for itself and its successors and assigns, hereby covenants and agrees to maintain and repair or cause to be maintained and repaired the Site and all related on-site improvements and landscaping thereon at its sole cost and expense, including, without limitation, buildings, parking areas, lighting, signs and walls, in a first class condition and repair, free of rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction over the Site. Such maintenance and repair shall include, but not be limited to, sweeping and trash removal; and the care and replacement of all shrubbery, plantings, and other landscaping in a healthy condition. In addition, Participant shall be required to maintain the Site in such a manner as to avoid the reasonable determination of a duly authorized official of the Agency or City that a public nuisance has been created by the absence of adequate maintenance such as to be detrimental to the public health, safety or general welfare or that such a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within one thousand (1,000) feet of such portion of the Site. 4.3 Obligation to Refrain from Discrimination There shall be no discrimination against, or segregation of, any persons, or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the enjoyment of the Site, nor shall Participant itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, 627/W40840012 - 12 - 69989 02 OR/]5/00 sublessees, or vendees of the Site or any portion thereof. The foregoing covenants shall run with the land and shall remain in effect in perpetuity. 4.4 Form of Nondiscrimination and Nonsegregation Clauses Participant shall refrain from restricting the rental, sale, or lease of any portion of the Site, or contracts relating to the Site, on the basis of race, color, creed, religion, sex, marital status, national origin, or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 4.4.1 In deeds: "The grantee herein covenants by and for himself, his heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee himself, or any persons claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the land herein conveyed. The foregoing covenants shall run with the land." 4.4.2 In leases: "The lessee herein covenants by and for himself, his heirs, executors, administrators, and assigns, and all persons claiming under or through him, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein leased." 4.4.3 In contracts: "There shall be no discrimination against or segregation of any persons or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, transfer, use, occupancy, tenure, or enjoyment of land, nor shall the transferee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of land." 4.5 Effect and Duration of Covenants After issuance of the Release of Construction Covenants with regard to the Site, all of the terms, covenants, agreements, or conditions set forth in Article III of this Agreement shall cease and terminate. Thereafter, the only terms, covenants, and conditions to survive shall be those set forth in the Agreement Containing Covenants Affecting Real Property, this Article 4.0, and the 677/01Q8a0012 - 13 - 69989.02.08/15/00 i • • provisions in Articles 1.0, 2.0, 3.0, 5.0 and 8.0 applicable to the interpretation and enforcement of such matters, which terms, covenants, and conditions shall survive as herein stated. Agency is deemed a beneficiary of the terms and provisions of this Agreement and of the restrictions and covenants running with the land for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit the covenants running with the land have been provided. The covenants in favor of Agency shall run without regard to whether Agency has been, remains, or is an owner of any land or interest therein in the Site, or in the Redevelopment Project Area. Agency shall have the right, if any of the covenants set forth in this Agreement or the Agreement Containing Covenants that are provided for its benefit are breached, to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of such covenants may be entitled. 5.0 DEFAULTS AND REMEDIES 5.1 Defaults--General Subject to all of the extensions of time available in Section 8.3, failure or delay by any party to perform any term or provision of this Agreement constitutes a default under this Agreement; however, the party shall not be deemed to be in default if (i) such party cures, corrects, or remedies such default within thirty (30) days (or five [5] days for certain defaults specified in Section 4.1) after receipt of a notice specifying such failure or delay, or (ii) for such defaults that cannot reasonably be cured, corrected, or remedied within thirty (30) days (or five [5] days for certain defaults specified in Section 4.1), if such party commences to cure, correct, or remedy such failure or delay within such thirty (30) day period (or five [5] day period for certain defaults specified in Section 4.1) after receipt of a notice specifying such failure or delay, and diligently prosecutes such cure, correction or remedy to completion. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Copies of any notice of default given to Participant shall also be delivered to any permitted lender requesting such notice. Except as provided in Section 4.1 above or as required to protect against further damages, the injured party may not institute proceedings against the party in default until expiration of the applicable cure period. Except as otherwise expressly provided in this Agreement, any failure or delay in giving such notice or in asserting any of its rights and remedies as to any default shall not constitute a waiver of any default, nor shall it change the time of default, nor shall it deprive either party of its rights to institute and maintain any actions or proceedings to which it is entitled under this Agreement to protect, assert or enforce any such rights or remedies. 5.2 Legal Actions 5.2.1 Institution of Legal Actions. In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover actual damages for any default, or to obtain any other remedy consistent with the purposes of this Agreement; provided, however, that Section 5.5 shall supersede any conflicting provisions of 627/0140840012 - 14 - 69989 02 a08/15/00 1 this Section 5.2.1. Such legal actions must be instituted and maintained in the Superior Court of the County of Riverside, State of California, or in any other appropriate court in that county. 5.2.2 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 5.2.3 Acceptance of Service of Process. In the event that any legal action is commenced by Participant against Agency, service of process on Agency shall be made by personal service upon the Executive Director or Secretary of Agency, or in such other manner as may be provided by law. In the event that any legal action is commenced by Agency against Participant, service of process on Participant shall be made by personal service upon Participant or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. 5.3 Rights and Remedies are Cumulative Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 5.4 Notice of Default: Damages If either party defaults with regard to any of the provisions of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured or commenced to be cured in accordance with Section 5.1 herein: (i) if Participant is the defaulting party, Participant shall be liable to Agency for any damages to Agency caused by such default, except as otherwise expressly provided herein, and (ii) if Agency is the defaulting party, Participant's exclusive remedy shall be as set forth in Section 5.5. 5.5 Specific Performance As Participant's Exclusive Remedy Subject to Participant's right to terminate this Agreement in accordance with the terms of Section 5.7.2, Participant's exclusive remedy for an uncured Agency default under this Agreement is institute an action for specific performance of the terms of this Agreement, and in no event shall Participant have the right, and Participant expressly waives the right, to seek monetary damages of any kind (including but not limited to actual damages, economic damages, consequential damages, or lost profits) from the Agency in the event of a default by Agency under this Agreement or any action related to this Agreement. Notwithstanding the foregoing, Participant shall retain the right to seek a writ of mandate in the event of any final denial by Agency of any Agency permit approval pertaining to the Project. 5.6 Attorney's Fees If either party to this Agreement is required to initiate or defend litigation in any way connected with this Agreement, the prevailing party in such litigation, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to its actual and 627/0140840012 - 15 - 69989 02 a08/15/00 5 i i reasonable attorney's fees. If either party to this Agreement is required to initiate or defend litigation with a third party because of the violation of any term or provision of this Agreement by the other party, then the party so litigating shall be entitled to its actual and reasonable attorney's fees from the other party to this Agreement. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, retaining expert witnesses, taking depositions and discovery, and all other necessary costs incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. The parties hereto acknowledge and agree that each such party shall bear its own legal costs incurred in connection with the negotiation, approval, and execution of this Agreement. 5.7 Termination 5.7.1 Agency's Right to Terminate. In the event Agency is not in default under this Agreement, and any of the following matters fail to occur on or before the time specified in the Schedule of Performance for such matter, or any extension thereto as permitted in this Agreement, then in such event, Agency, at its option, may deliver a thirty (30) day written notice of termination to Participant and, if the applicable requirement has not been satisfied (or waived by Agency) within said time period, this Agreement shall terminate: i. Participant does not timely execute and deliver to Agency for recordation the Agreement Containing Covenants in accordance with this Agreement, or ii. Participant modifies, without Agency's prior written consent, the approved final building plans, or other of the Approved Project Plans and Permits as set forth in Sections 3.4 and 3.5 herein; or iii. Participant does not timely submit complete applications for all permits for the Project in accordance with Sections 3.4 and 3.5 herein; provided that nothing herein shall be construed as a representation or warranty by Agency that Agency or City will approve any of such items; or iv. Participant does not timely submit a complete Evidence of Financial Capability submittal in accordance with Section 3.3 herein; or V. Participant does not timely submit to Agency Executive Director the required evidence of insurance in accordance with Section 3.8 herein; or vi. Participant does not timely commence or complete the Project in accordance with Section 3.7 herein; or 627/OM84-0072 - 16 - 69989.02 a08A 5/00 i • • vii. Participant transfers or encumbers the Site or any portion thereof or assigns any of its rights or obligations under this Agreement in violation of Sections 3.13 or 3.14 herein, unless the transfer or encumbrance is permitted under this Agreement; or viii. Participant fails to timely submit a complete submittal of Participant's monitoring compliance system in accordance with Section 6.2 herein; or ix. Participant is in material default of any of the terms, covenants, and conditions of this Agreement or the Agreement Containing Covenants following expiration of any applicable cure period. In the event of termination under this Section 5.7.1, neither party shall have any further rights or obligations against the other (except Agency shall reserve its rights under Sections 5.1- 5.5, inclusive, if Agency is not in default). 5.7.2 Participant's Right to Terminate In the event that Participant is not in default under this Agreement, and Agency is in default of this Agreement prior to the Agency's payment of the Agency Assistance, then, subject to, the terms of this Agreement, Participant, at its option, may deliver a thirty (30) day notice of termination to Agency and, if the Agency Assistance is not provided within that thirty (30) day period, Participant, as an alternative to Participant's specific performance remedy set forth in Section 5.5, may terminate this Agreement by delivery of written notice to Agency. In the event of termination under this Section 5.7.2, neither party shall have any further rights or obligations against the other. 6.0 SPECIAL PROVISIONS 6.1 Construction Costs for Project, Agency Assistance. Agency shall assist Participant in the construction of the Project by paying two-thirds (2/3) of the total cost for construction of the improvements listed at Attachment No. 3 ("Eligible Improvements") from Agency's Low Income Housing Set Aside Fund; provided that the Agency shall not be obligated to expend more than twice the amount of the Participant Expenditure, as defined at Section 6.1.1(a) below, up to the maximum Agency Assistance of Four Hundred Fifty Thousand Dollars ($450,000.00) ("Agency Assistance"). In the event that the total of the Agency Assistance plus the Participant Expenditure is greater than the total cost and fees required for construction of the Eligible Improvements, the Agency Assistance shall be reduced by such difference. In the event that the total of the Agency Assistance plus the Minimum Participant Expenditures is less than the total cost required to pay all of the Eligible Improvements, Participant shall be responsible for any additional costs required to pay for all of the Eligible Improvements. 6.1.1 Payment and Billing Procedures. Upon execution of this Agreement, and after evidence satisfactory to Agency that (1) Participant requires the Agency Assistance to implement the Project, (2) the Agency's fiscal 627/0140840012 - 17 - 6998902 a08/15/00 interests will be protected, and (3) Participant has caused improvements to be made to the Site in an amount equal to at least the Participant Expenditure, as defined immediately below, the Agency shall provide Participant with payment of that portion of the Agency Assistance as reflected on any invoice submitted to Agency and approved by the Executive Director, or his or her designee, to pay for the construction of any Eligible Improvement. The Agency Assistance shall be disbursed based upon the following limitations: (a) Participant shall be required to spend at least one third (1/3) of the total cost for the construction of the Eligible Improvements ("Participant Expenditure"), as confirmed by invoices, cancelled checks and reports, as required by the Executive Director, submitted by Participant to Agency describing the improvements to the Site and amounts paid by Participant therefor. Specifically, for each increment of$6,617.65, or each portion thereof, of Agency Assistance provided by Agency, Participant shall be required to show expenditures of$3,308.83 for the construction of Eligible Improvements. No Agency Assistance payments shall be made to Participant unless and until Participant provides the Executive Director with the documentation described in this Section confirming that Participant has caused to be made the improvements at a value equal to at least the Participant Expenditure. (b) Costs incurred in violation of any of the terms of this Agreement, or prior to any required approval of changes herein, will not be accepted. (c) All requests for Agency Assistance, quarterly reports, and other documents shall be signed and dated by Participant's authorized signatory. (d) Any previous payment of Agency Assistance shall have been used to begin and diligently pursue construction of the Eligible Lnprovement(s) within twenty (20) days of the date paid by Agency. 6.1.2 Budget and Program Changes. No changes shall be made in the distribution of Agency Assistance as herein approved without express prior written approval of the Agency. The Agency shall be informed of, and must approve, all program changes prior to Participant making the change. The Agency shall approve the forms for requesting program changes. Without prior written approval of the Agency, no portion of the Agency Assistance shall be used for any purposes other than for the payment of constructing the Eligible Improvements, as described at Section 6.1. 627/014084-0012 _ 18 69989.02.08/15/00 r 1 0 6.1.3 Periodic Reports. Unless otherwise specified, within fifteen (15) days after the end of each quarter, Participant shall submit to Agency a quarterly progress report, including a breakdown of Agency Assistance. Such quarterly reports shall demonstrate to the satisfaction of the Agency reasonable progress in accomplishing the Project. Within thirty (30) working days after the completion of the Project, Participant will submit a final report and evaluation in lieu of the last quarterly report, which will summarize the progress and problems of the Project, the funding obtained from other sources, the client response, and the progress and accomplishment of the Project. 6.1.4 Return of Unexpended Agency Assistance Funds. Participant agrees to return to the Agency all unexpended Agency Assistance, as set forth at Section 6.1 herein, and to relieve the Agency of any further obligation under this Agreement. 6.2 Participant's Accountability System; Annual Report. 6.2.1 Within the time set forth in the Schedule of Performance, Participant, at no expense to Agency, shall develop, and obtain Agency Executive Director's reasonable approval of, and shall thereafter maintain, a system to monitor compliance with the affordability requirements set forth in the Agreement Containing Covenants. Participant, following approval of the monitoring system by Agency's Executive Director, shall maintain the monitoring compliance system for the period of the affordability covenant set forth in the Agreement Containing Covenants. 6.2.2 In accordance with Health & Safety Code Section 33418 (or successor statute), Participant shall submit to Agency the annual report required by Section 33418. The report shall contain the information specified in Section 33418. In accordance with Section 33418(c), the Agency is authorized to annually impose a fee upon Participant to defray Agency's costs in complying with the requirements of Section 33418. If Agency elects to impose such a fee, Agency shall notify Participant of the amount prior to the due date of the report and Participant shall remit the fee with the report; provided, however, that the fee imposed by Agency on Participant shall not exceed the greater of(i) the actual cost to prepare the report, or (ii) One Thousand Five Hundred Dollars ($1,500.00). If Participant fails to remit the fee with the report, or fails to submit the report, Participant shall be in breach of this Agreement and the Agreement Containing Covenants and shall be subject to the penalties and remedies specified in this Agreement and the Agreement Containing Covenants. By executing this Agreement, Participant represents and warrants that it has reviewed Health & Safety Code Section 33418 and has familiarized itself with the reporting requirements contained therein. 6.2.3 Participant and Agency acknowledge and agree that Agency is required to monitor the affordability of units in the Project and must verify the information contained in each annual report prepared by Participant in accordance with Health & Safety Code Section 33418 and submitted to Agency. Therefore, Participant shall submit with each annual Section 33418 report an audited statement prepared at Participant's cost and certified by Participant's financial officer verifying the information in that Section 33418 report. 627/014084-0012 6998902 a08/15/00 - 19 - 6.3 Affordable Units. In exchange for each increment of Six Thousand Six Hundred Seventeen and 65/100 Dollars ($6,617.65), or each portion thereof, of Agency Assistance provided by Agency under 6.1 and 6.1.l(a), Participant agrees to restrict the affordability, use, and occupancy of one (1) additional Unit up to a maximum of sixty-eight (68) Units in accordance with this Agreement and the Agreement Containing Covenants. Thus, upon completion of the Project, Agency, by provision of the Agency Assistance, shall have assured the affordability, use, occupancy, and other restrictions applicable to the Affordable Units and the Site as set forth in this Agreement and in the Agreement Containing Covenants. The following examples, which are provided for illustration purposes only, show the method of calculating the number of Affordable Units. Example No. 1: Total cost of constructing Eligible Improvements is $600,000. Participant's contribution (or the Participant Expenditure) is $200,000 (1/3 of total cost of Eligible Improvements). Participant is entitled to Agency Assistance of $400,000. The number of Affordable Units shall be 61 ($400,000/$6,617.65 = 6.444, which amount is rounded up to 61). Example No. 2: Total cost of constructing Eligible Improvements is $800,000. The Participant Expenditure is $350,000 because maximum Agency Assistance is $450,000. Total Affordable Units is 68. 6.4 Relocation Should any tenant require temporary relocation during construction of the Project, Participant represents that it can accomplish any and all such relocation to vacant Units within the Site, which Units are available, and shall be provided to any and all such displaced tenants with minimum hardship to those affected. Participant agrees that it shall provide any relocation assistance required pursuant to Health and Safety Code sections 33410 et. seep, and agrees that Agency shall in no event be responsible to provide any relocation assistance, whether in payment or in kind. Any payment of relocation assistance provided by Participant hereunder shall not be included as part of the Participant Expenditure for the purpose of calculating the Agency Assistance under Sections 6.1 and 6.1.1 (a) above. Additionally, Participant warrants that it shall provide the following to any eligible tenants required to be relocated: (a) Fair and reasonable relocation payments; and (b) A relocation assistance program, which shall be available to eligible tenants and describe available assistance, benefits, policies, practices and procedures, including grievance procedures provided in the State Guidelines, at California Code of Regulations, title 25, sections 6000 et. se .; and (c) Comparable replacement housing sufficient in number, size and cost for eligible tenants, based upon a recent survey and analysis of the needs of such tenants; and 627/0140840012 - 20 - 69999 02.08/15/00 (d) Adequate accommodations made to assure orderly, timely and efficient relocation of eligible tenants to comparable housing, without regard to such tenants' race, color, religion, sex, marital status or national origin. Participant agrees that the indemnification provisions of Section 7.1 herein shall specifically apply to Participant's obligations to provide relocation benefits to any tenant claiming a right to such benefits. In the completed Project, Participant shall bear all relocation expenses for ineligible tenants that have rented Affordable Units and tenants renting Affordable Units admitted but later found to exceed the income levels identified in the Agreement Containing Covenants, to the extent such tenants are eligible for relocation assistance. 6.5 Agreement Containing Covenants Concurrently with the issuance of building permits for the Project or any portion thereof, the Participant shall execute, within the time set forth in the Schedule of Performance, Agency shall record against the entire Site the Agreement Containing Covenants. Each and every term, provision, agreement, covenant, condition and restriction contained in the Agreement Containing Covenants is hereby expressly incorporated herein by reference as if fully set forth herein. The Agreement Containing Covenants shall be signed and acknowledged by all parties having record title interest in the Site, shall make the Agency and City parties thereto and shall be enforceable by the Agency and the City. 7.0 INSURANCE AND INDEMNIFICATION 7.1 Indemnification Participant shall indemnify, defend, and hold harmless the Agency and City and their respective officers, officials, members, employees, agents, representatives, and volunteers from all loss, cost, and expense, including but not limited to any judgments against same and attorneys' fees and costs, arising out of any liability or claim of liability for personal injury, bodily injury to persons, contractual liability, and damage to property sustained or claimed to have been sustained arising out of acts or activities of Participant or Participant's officers, employees, agents, representatives, or volunteers, whether or not such act or activity is authorized by this Agreement; and Participant shall pay for any and all damage to the property of Agency and City, or loss or theft of such property, done or caused by such persons. Agency and City assume no responsibility whatsoever for any property placed on the premises. Participant further agrees to waive all rights of subrogation against Agency and City. The indemnification provisions set forth herein do not apply to any damage or loss caused solely by the willful misconduct of Agency or City or any of their respective officers, officials, members, employees, agents, representatives or volunteers. 627/014084-0012 - 21 - 6998902 a08/15/00 7.2 Insurance Requirements Participant shall procure and maintain during both construction and subsequent operation of the Project, and in all cases for the duration of this Agreement, insurance against claims for injury and property damage which may arise from or in connection with the performance of this Agreement. 7.2.1 Minimum Scope of Insurance. Coverage shall beat least as broad as: (a) Commercial General Liability insurance to include products and completed operations, contractual, independent contractors, broad form property damage, fire, legal, and personal injury. (1) Comprehensive Automobile Liability insurance to include all autos owned, hired, and non-owned. (2) "Builder's Risk Property Insurance" to include Participant's improvements and betterment; and following construction but prior to Agency's disbursement of the Agency Assistance hereunder, Participant shall provide All Risk Property insurance to include Participant's improvements and betterment (continuously for the duration of this Agreement). (b) Workers' Compensation as required by the Labor Code of the State of California and Employers' Liability insurance. 7.2.2 Minimum Limits of Insurance. Participant shall maintain limits no less than: (a) Commercial General Liabilitv: One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage. (b) Automobile Liability: Five Hundred Thousand Dollars ($500,000) combined single limit per occurrence for bodily injury and property damage. (c) All Risk Property: Following construction of the Project, ninety (90%) percent of the replacement value of the building(s) on the Property and Participant's improvement and betterment. (d) Workers' Compensation and Employers' Liability: Workers' Compensation limits as required by the Labor Code of the State of California and Employers' Liability limits of One Million Dollars ($1,000,000) per accident. 627/014084-0012 6999902 a08/15/00 - 22 _ • i 7.2.3 Deductibles and Self-Insured Retentions. The All Risk Property insurance and the Builder's Risk insurance shall each have a maximum deductible of $10,000. All other deductibles or self-insured retentions must be declared to and approved in advance by the Agency's Executive Director, who in his/her sole discretion may require the insurer to reduce or eliminate such deductibles or self-insured retentions with respect to Agency and City and Agency's and City's respective officers, officials, members, employees, agents, representatives, and volunteers; or Participant may be required to procure a bond guaranteeing payment of losses and related investigation, claims administration, and defense expenses. 7.2.4 Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: (a) General and Automobile Liability Coverage. Agency and City and Agency's and City's respective officers, officials, members employees, agents, representatives, and volunteers are to be named as additional insureds with respect to liability arising out of the acts or activities performed by or on behalf of Participant. (b) Property Coverage (and Builder's Risk) If Inclusive. Agency shall be named as a loss payee on the policies and any settlement will accordingly include the Agency on the draft or check. (c) Workers' Compensation and Employers' Liability Coverage. The insurer shall agree to waive all rights of subrogation against the Agency and City and Agency's and City's respective officers, officials, members, employees, agents, representatives and - volunteers, for losses arising from work performed by Participant for the Agency. (d) All Coverage. (1) Participant's insurance coverage shall be primary insurance and non-contributory with respect to Agency and City and Agency's and City's respective officers, officials, members, employees, agents, representatives, and volunteers, and with respect to any insurance Agency and Agency's officers, officials, employees, agents, representatives, and volunteers may have. (2) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to Agency and City and Agency's and City's respective officers, officials, members employees, agents, representatives, and volunteers. 627/014084-0012 - 23 - 69989.02.08/15/00 (3) No coverage shall be suspended, voided, cancelled, reduced in coverage or in limits, or non-renewed, except after thirty (30) days' prior written notice by personal delivery or certified mail has been given to Agency's Executive Director. (4) All insurance with respect to Agency and City and Agency's and City's officers, officials, members, employees, agents, representatives, and volunteers shall be "date of occurrence" insurance and not "claims made" insurance. (5) All insurance shall apply separately to each insured against whom claims is made or suit is brought, except with respect to the limits of the insurer's liability. 5. Acceptability of Insurers. Insurance is to be placed with insurers with a BEST rating of no less than B+ Class X. The procuring of insurance by Participant shall not be construed as a limitation on Participant liability or as full performance of Participant's obligation under the Indemnification Provisions of this Agreement, including as set forth in Section 7.1 herein, and Participant understands and agrees that, notwithstanding any insurance, Participant's indemnification obligation, as set forth in Section 7.1 herein, extends to the full and total amount of any damage, injuries, loss, expense, costs, or liabilities suffered or incurred by Agency or City or Agency's or City's respective officers, officials, members, employees, agents, representatives, and volunteers. 8.0 GENERAL PROVISIONS 8.1 Notices, Demands and Communications Between the Parties Formal notices, demands, and communications between Agency and Participant shall be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or (iii) or by mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to: To Agency: Community Redevelopment Agency of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92263 Attn: Executive Director With a copy to: Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, California 92626 Attn: David J. Aleshire To Participant: Heritage Apartments 300 South Calle El Segundo 627/0140940012 - 24 - 69989.02 a08/15/00 Palm Springs, California 92262 Attn: Rose Mihata Notices personally delivered or delivered by document delivery service shall be deemed effective upon receipt. Notices mailed in the manner provided above shall be deemed effective on the second business day following deposit in the United States mail. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either party may from time to time designate by mail. 8.2 Nonliability of City and Agency Officials and Employees: Conflicts of Interest No member, official, employee, or contractor of City or Agency shall be personally liable to Participant in the event of any default or breach by Agency or for any amount which may become due to Participant or on any obligations under the terms of the Agreement. No member, official, employee, or agent of City or Agency shall have any direct or indirect interest in this Agreement nor participate in any decision relating to this Agreement which is prohibited by law. 8.3 Enforced Delay; Extension of Times of Performance In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock-outs, riots, floods, earthquakes, fires, casualties, supernatural causes, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplies, acts of the other party, acts or failure to act of City or any other public or governmental agency or entity (except that any act or failure to act of Agency shall not excuse performance by Agency) or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. Notwithstanding the foregoing, inability to secure satisfactory financing, tenant commitments, or market and economic conditions shall not entitle Participant to an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of knowledge of the commencement of the cause. In addition, times of performance under this Agreement may be extended by mutual written agreement by Agency and Participant. 8.4 Inspection of Books and Records Participant shall have the right at all reasonable times and without interference with the business or operation of Agency, to inspect the books and records of Agency pertaining to the Site as pertinent to the purposes of the Agreement. Agency shall retain a copy of this Agreement in the office of Agency Secretary. 627/014094-0012 - 25 - 69989.02 a08/15/00 Agency shall have the right at all reasonable times to inspect the books and records of Participant pertaining to the Site as pertinent to the purposes of this Agreement. Participant shall maintain its books and records within the County of Riverside. Agency shall not request inspection of Participant's books and records more than once in any twelve (12) month period, unless Agency is required to obtain information in order to comply with reporting or other requirements of law, including but not limited to verifying the information set forth in Participant's annual report filed with the Agency pursuant to Health & Safety Code Section 33418 and Section 602.3 of this Agreement. 8.5 Interpretation The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. 8.6 Entire Agreement, Waivers, and Amendments This Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the party to be charged, and all amendments and modifications hereto must be in writing and signed by the appropriate authorities of Agency and Participant. 8.7 Consent: Reasonableness Except when this Agreement specifically authorizes a party to withhold its approval or consent in its sole discretion, when either Agency or Participant shall require the consent or approval of the other party in fulfilling any agreement, covenant, provision, or condition contained in this Agreement, such consent or approval shall not be unreasonably withheld, conditioned, or delayed by the party from whom such consent or approval is sought. 8.8 Counterparts This Agreement may be executed in counterparts, each of which, after all the parties hereto have signed this Agreement, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 8.9 Successors This Agreement shall be binding upon and shall inure to the benefit of the permitted successors of each of the parties hereto. 627/014084-0012 - 26 - 69989 02 a08/15/00 • 8.10 Further Assurances The parties hereto each agree, without further consideration, to execute.such other and further documents, and to perform such other and further acts, as may be necessary or proper in order to consummate the transaction set forth in and contemplated by this Agreement. 8.11 Severability In the event any section or portion of this Agreement shall be held, found, or determined to be unenforceable or invalid for any reason whatsoever, the remaining provisions shall remain in effect, and the parties hereto shall take further actions as may be reasonably necessary and available to them to effectuate the intent of the parties as to all provisions set forth in this Agreement. (end— signature page and exhibits attached) 627/0140840012 69989 02.08/15/00 - 27 _ IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the Effective Date. "AGENCY COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS By: a =l �9 Chairman ATTEST: ecretary APPROVED AS TO FORM: By: Agency3Counsel "PARTICIPANT" ROSE MIHATA, an individual, and SCOTT TIMBERLAKE, an individual P I ,I< a A .s f Rose a Scott Timberlake ow 627/014084-0012 6998902 a08/15/00 — 28 CALIFORNIA ALL-PURPA ACKNOWLEDGMENT • State of California County of RiversideI S On Aug. 22, 2000 before me, Elaine L. Wedeldnd, Notary Publiczll Date Name and Title of Officer e.I(1 ( g.,"Jane Doe,Notary Publld') �I personally appeared —ROSE E. MIHATA I (� Named)of Slgner(a) , XXJ personally known tom to be the persona j < whose name,($) is/At�subscribed to the within instrument NI and acknowledged to me that op/she/ftop1D executed the f same in Ijj/her/j#r authorized capacityVVI), and that by Oysiher/,tVOft signature(A) on the instrument the personft), l *Hlole �'-�'"` . or the entity upon behalf of which the person(p) acted, ELAINE L.WEDEKINDCOMM.#1206984 executed the instrument.NOTARY PUBLIPCALIFORNIARIVERSIDE couNTv 0 //ITNESS my hand and official seal. COMM.EXP,FEB.3,2003 •'r I Y t�l Signature of Notary Public " OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could preventll fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: ;I o Document Date: Number of Pages: [, n Signer(s) Other Than Named Above: I Capacity(ies) Claimed by Signer(s) <<I >I Signer's Name: Signer's Name: ;,al ❑ Individual ❑ Individuals ❑ Corporate Officer ❑ Corporate Officer �( Title(s): Title(s): p ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ GeneralI ,S< ❑ Attorney-in-Fact ❑ Attorney-in-FactI ❑ Trustee ❑ Trustee ),I ❑ Guardian or Conservator ❑ Guardian or Conservator - Ic ❑ Other: Top of thumb here ❑ Other: Top of thumb here j Signer Is Representing: Signer Is Representing: Ill, (i if ?� Ik4,I ©1995 National Notary Association•8236 F ammet Ave,P 0 Box 7184•Canoga Park,CA 91309-7184 Prod.No 6907 Reorder.Call Toll-Free 1-800-876-6827 9.70./3 8-09 rR.A. 0//-003 POR,SWI14IEC./4T.4S.R.4E •r / ar Z 0/1-0/7 Or/-055 0//-05Z 1 r/Y rir Tr 32 jj I 1 : 45 4 Aq b Ju..a.l 40 V ii P"PFn� T .ri+•.A1 ' 49`/.asp` I LS O iO R eI 8 ,.xl - i $9i'� I I �,••• z.co ACY +.NAcf 1 •.00q�: t o IAc 0 r �♦ ,oa • � � _ _r\_ Par as PY?• 1 P•, ?J J,aaY 3 54 _ a A,=e Ex H5 v' eJAe {�„rrc. 59 Wrt Ia_-Jalw eIp%e1w9.n o _ 59 x : 095 I a" Pie P/r,x094 v.rru v.,rrr62 .,1 m•.wr I �r09 w•3 « � I �I�-f- 1,27 _ I 65 /5 /4' RAMON 1 r--- `°' ROAD hr•n» 1• - M• 4(.0 S-//-60 rv1+-,•a u,ae /4 0.4 fG 09 5 BC P �� f a.• PM 62159-60 Porte/ Mop No /3/57 gSSE55Pe'S MA r a/s 31/a-rJ, 53/Ss-f3 /Z M8'/34/8-9 Tract No. /5587CM.49/9-36Zr90B0 / 84 gN£RS/0.M &C ; CAME M:R. /6//76-77 Tract No. /9,467-3 • 0 ATTACHMENT NO. 2 LEGAL DESCRIPTION OF SITE ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF RIVERSIDE, CITY OF PALM SPRINGS, DESCRIBED AS FOLLOWS: ALL THAT PORTION OF THE SOUTHWEST QUARTER OF SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF. SAID LAND IS SHOWN AS LOTS 41 AND 42 ON A PLAT OF SUBDIVISION OF SAID SECTION DATED NOVEMBER 1948, AND FILED IN THE OFFICE OF THE BUREAU OF INDIAN AFFAIRS BASED UPON A SURVEY BY ROBERT A . WHER, SURVEYOR, UNITED STATES INDIAN SERVICE. 627/014094-0012 _ 1 69989.02 a08/15100 0 ATTACHMENT NO. 3 SCOPE OF DEVELOPMENT Participant shall construct the Project in accordance with the approvals granted to it by the City and City and include the following Eligible Improvements: 1. Perimeter Wall. Replace the perimeter wall at the Site with a block wall that shall be constructed in a condition which appears new and clean, and shall be functional and sturdy sufficient to meet the requirements of all applicable codes, regulations and City specifications. 2. Parking Lot. Resurface and re-stripe the parking lot at the Site, as well as install lighting thereon. Participant shall resurface the parking lot shall using materials approved by the City and in a manner sufficient to avoid dilapidation due to weather and normal use, and remove cracks, breaks, significantly uneven surfaces, and unpaved areas of the existing parking lot at the Site. Re-striping shall be sufficient to provide adequate parking to all units at the Site, pursuant to applicable codes and regulations, including handicapped stalls and logos as required by applicable state, federal and local codes. All lighting fixtures installed at the property shall be of a size and intensity as may be approved by the City pursuant to City codes, rules and regulations. 3. Pool and spa. Replaster and retile pool and spa to repair cracks and discolorations. All replastering and retiling shall be conform to any applicable state, federals or local code or regulation. 4. Air Conditioning Units. Replace air conditioning units with energy efficient units for all Units and common buildings at the Site. 5. Staircases. Repair, and where needed, replace staircases throughout the Site sufficient to assure that the staircases appear new and clean, and are structurally sturdy and free from cracks, and broken parts. 6. Roof. Repair and/or replace any portion of the roof of the apartment complex or any Unit at the Site where such roof is deteriorated, leaking, unsightly or violates any applicable code or regulation. 7. Mechanical and Plumbine. Repair and/or replace any mechanical or plumbing fixture at the apartment complex or any Unit at the Site where such mechanical or plumbing fixture is subject to leaks, breaks, excessive noise, rust, or other dilapidated condition 8. Appliances. Replace and/or repair any appliance at any Unit at the Site that does not function as intended, broken, excessively unsightly or in need of upgrading to accomplish significant energy savings. 627/014084-0012 1 69989.02.08/15/00 r 9. Paintine, Repaint all units, from inside and out and all exteriors of any improvements at the Site. Painting shall require stripping of old paint, where necessary to prevent chipping, cracking or peeling of new paint, and priming all paint surfaces. 627/0140840012 6998902 a08/15/00 - 2 - ATTACHMENT NO. 4 SCHEDULE OF PERFORMANCE Item of Performance Time for Performance 1. Agency approves Participant's Basic Concurrently with execution of this Concept Drawings (§ 3.4) Agreement. 2. Participant executes and delivers to Concurrent with execution of this Agreement. Agency Agreement and Agreement Containing Covenants. (§ 6.5) 3. Participant submits evidence of Within ten (10) days after the Effective Date. ownership status to Agency's Executive Director and obtains approval of same. (§ 3.1) 4. Agency executes and delivers Agreement Within fifteen (15) days after performance of Containing Covenants to County Item No. 1 of this Attachment No. 4 and Recorder for recordation against the Site. Agency approval and execution of the Owner (§ 6.5) Participation Agreement. 5. Participant prepares and submits to Within thirty (30) days after the Effective Date. Agency and City final working drawings, grading plan and landscaping plan. (§ 3.4 and 3.5) 6. Agency and City review and approve (or Within thirty (30) days of the date Participant request corrections of) Participant's final submits final drawings and plans. drawings and plans. (§ 3.4 and 3.5) 7. Participant makes corrections and Within thirty (30) days of the date Agency or resubmits final drawings and plans with City returns final drawings and plans to any revisions required by the Agency (if Participant with requested changes. applicable). (§ 3.4 and 3.5) 8. Agency and City review and approve or Within thirty (30) days after Participant disapprove resubmitted final drawings resubmits revised final drawings and plans. and plans. (§ 3.4. and 3.5) 9. If necessary, Participant resubmits to Within seven (7) days of performance of Item Agency and City final corrected set of No. 8 of this Attachment No. 4. site and building plans for the Project. (§ 3.4 and 3.5) 627/014084-0012 3 69989 02 a08/15/00 y 10. Participant submits required evidence of Within thirty (30) days of the Effective Date of insurance to Agency's Executive this Agreement. Director. (§ 3.8) 11. Participant submits Evidence of Financial Prior to the issuance of building permits for the Capability. (§ 3.3) Project. 12. Participant obtains building permits for Upon satisfaction of all above conditions set the Project. (§3.5) forth in this Attachment No. 4. 13. Participant submits Construction Within 30 days of the Effective Date of this Schedule to Agency's Executive Director Agreement. indicating completion dates for each portion of the Project. (§ 3.7) 14. Participant submits a monitoring system Within thirty (30) days of the Effective Date of plan for compliance with affordability this Agreement. requirements. (§ 6.2.1) 15. Participant commences construction of Within forty-five (45) days of receipt of the Project on the Site after obtaining all building permits. required permits and approvals. (§§ 3.4, 3.5, 3.7). 16. Participant completes Project on the Site Not later than June 7, 2002. and obtains Agency's Certificate of Completion. (§§ 3.6, 3.9) It is understood that the foregoing Schedule is subject to all of the terms and conditions of the text of the Agreement. The summary of items of performance in this Schedule is not intended to supersede or modify any more complete description in the text. In the event of any conflict between this Schedule and the text of the Agreement, the text shall govern. The times for performance set forth in the Schedule may be extended due to "force majeure" events and in addition Agency's Executive Director may approve extensions of time not to exceed a cumulative total of one hundred eighty (180) days. 627/0140840012 _ 69989 02 a08/15/00 - 4 i • 01 ?ALM SA City of Palm Springs * Office of the City Clerk Y �Co 93 F oaprev 3200 Tahqu¢z Canyon Way • Palm Spnngs,Cahfo=m 92262 CqC I ro RN TEL (760)323-8204 •Too:(760)864-9527 December 15,2000 Heritage Apartments Attn: Rose Mihata 468 West Tahquitz Canyon Way Palm Springs,CA 92262 Dear Ms. Mihata: Enclosed please find one originally signed copy of the Owner Participation Agreement,4402C, with the Palm Springs Community Redevelopment Agency, approved by the Agency on June 7, 2000, by Resolution 1100, A402C. In addition, please find enclosed a recorded copy of the Agreement Containing Covenants Affecting Real Property,which was recorded on November 7, 2000. Should you have any questions, please contact me at(760)323-8206. Sincerely',, ' ;c \ wl-e Barbara J. White Assistant City Clerk cc: John Raymond w/agreement Finance w/agreement File Post Office Box 2743 0 Palm Springs, California 92263-2743 OOC N 2000-4454ZO 11/07/2000 08:00A Fee:NC Page 1 of 27 Recorded in Official Records RECORDED AT THE REQUEST OF County of Riverside Gary L. Orso AND WHEN RECORDED RETURN TO: Assessor, County Clerk x Recorder Community Redevelopment Agency of the IIIII IIIIII III IIIII III I III I IIII III IIIII I II III City of Palm Springs M $ U PAGE SIZE DA PCOR NOOOR SWF MISC 3200 E. Tahquitz Canyon Way Palm Springs, CA 92263 Attn: Executive Director COPY7'... REFUND NCHG EXAM (SPACE ABOVE TffiS LINE FOR RECORDING USE) � II(EXEMPT FROM RECORDING FEE PER GOV. CODE§6103) 0i~'ll I I AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY 4 AG THIS AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY ("Agreement") is entered into this 7 h day of June, 2000 ("Effective Date"), by and between THE COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body corporate and politic ("Agency"), and ROSE MIHATA, an individual, and SCOTT TIMBERLAKE, an individual (collectively "Owner"), with reference to the following: A. Owner is the fee owner of record of the parcels that comprise that certain real property (the "Site") located in the City of Palm Springs, County of Riverside, State of California, legally described in the attached Exhibit No. 11." B. The Property is within the Merged Redevelopment Project Area No. 2 (the "Project Area") in the City of Palm Springs ("City") and is subject to the provisions of the Redevelopment Plan for the Project Area approved and adopted on May 7, 1986, by the City Council of the City by Ordinance No. 1264. The Redevelopment Project has been amended three times, on December 21,1994 by Ordinance No. 1498, on December 15, 1999 by Ordinance No. 1576, and on May 31, 2000 by Ordinance 1583. C. Owner entered into an Owner Participation Agreement ("OPA") with Agency, dated as of June 7, 2000, concerning the development and operation of the Property, which OPA is on file with the Agency as a public record and is incorporated herein by reference. All defined terms used herein shall have the same meaning as set forth in the OPA unless otherwise stated. NOW, THEREFORE, AGENCY AND OWNER AGREE AS FOLLOWS: 1. Commencing on the date of this Agreement and continuing in effect until May 7, 2026, Owner, on behalf of itself, its successors, its assigns, and each and every successor in interest to the Property, or any part thereof, hereby covenants and agrees that Owner and such successors and assigns, shall develop, maintain, and use not the Site and related interior and exterior improvements in accordance with the terms and conditions hereinbelow: 627/0140940012 _ 1 69989.02 e08/15/00 a. Distribution of Rental Units: Income Eligibility Rental Cost• Occupancy Limits. The Site shall contain not fewer than one hundred thirty-six (136) apartment units. Not fewer than one (1) apartment unit for each increment of six thousand six hundred seventeen and 65/100 dollars ($6,617.65), or each portion thereof, of Agency Assistance provided to Participant under the OPA, pursuant to Sections 6.1 and 6.1.1(a), up to a maximum of sixty-eight (68) apartment units shall be made available to eligible persons (the "Affordable Units") as follows: The Affordable Units shall be (A) rented to persons whose annual household income does not exceed sixty percent (60%) of the median income for Riverside County as published annually by the State of California based on income figures from the United States Department of Housing and Urban Development, and (B) rented to such eligible persons at a monthly rental cost, including utilities, which is not more than the amount derived as follows: (i) thirty percent (30%) of sixty percent (60%) of the annual median income for a two person household for Riverside County as published annually by the State of California based on income figures from the United States Department of Housing and Urban Development, (ii) divided by 12. Commencing July 1, 2001, the initial maximum monthly rent for the Affordable Units may be adjusted in accordance with the most recent median income figures for Riverside County published by the State of California, and may be adjusted on July 1 of each calendar year thereafter, as may be necessary. The maximum occupancy of each of the dwelling units on the Site, including the Affordable Units, shall be the lesser of(i) two persons per bedroom plus one additional person, or (ii) the maximum number of persons that are permitted to occupy the square footage of the unit under the applicable uniform building and housing code as adopted by the City of Palm Springs ("City") as of the time building permits are issued for the Project. b. Amenities• Maintenance. Owner, for itself and its successors and assigns, hereby covenants and agrees to maintain and repair or cause to be maintained and repaired the Site and all related on-site improvements and landscaping thereon at its sole cost and expense, including, without limitation, buildings, parking areas, lighting, signs and walls, in a first class condition and repair, free of rubbish, debris and other hazards to persons using the same, and in accordance with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies and agencies having jurisdiction over the Site. Such maintenance and repair shall include, but not be limited to, sweeping and trash removal; and the care and replacement of all shrubbery, plantings, and other landscaping in a healthy condition. In addition, Owner shall be required to maintain the Site in such a manner as to avoid the reasonable determination of a duly authorized official of the Agency or City that a public nuisance has been created by the absence of adequate maintenance such as to be detrimental to the public health, safety or general welfare or that such a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to property or improvements within one thousand (1,000) feet of such portion of the Site. In the event that Owner breaches any of the covenants contained in this subparagraph (c), and such default continues for a period of five (5) business days after written notice from Agency 627/01QFH 0012 69989 02 e08/15/00 I - 2 I I III III IIIII II I IIIIII IIIIII IIIII IIIII III IIIIF III IIII 1 L W'20Ff GO 7 GOA 4 0 • (with respect to landscaping, graffiti, debris, waste material, and general maintenance) or thirty (30) days after written notice from Agency (with respect to building improvements), then Agency, in addition to whatever other remedy it may have at law or in equity, shall have the right to enter upon the Property and perform or cause to be performed all such acts and work necessary to cure the default. Pursuant to such right of entry, Agency and/or City shall be permitted (but are not required) to enter upon the Property and perform all acts and work necessary to protect, maintain and preserve the improvements and landscaped areas on the Property, and to attach a lien on the Property, or to assess the Property in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by Agency and/or costs of such cure, including a fifteen percent (15%) administrative charge, which amount shall be promptly paid by Owner to Agency upon demand. C. Rental Process. The Affordable Units shall be rented to eligible tenants in accordance with the following terms: (1) Leasing Preference (a) Owner shall provide a preference in the initial leasing of the Affordable Units to individuals residing or working in the City of Palm Springs, (i) who meet the eligibility requirements and who are on a preference list established by the Owner subject to audits by the Agency, or (ii) who meet the eligibility requirements and are entitled to a preference pursuant to California Health and Safety Code Section 33411.3, or successor statute. To encourage the greatest possible opportunity for such residents of, or persons working in, Palm Springs to lease the Affordable Units, Owner, for both initial leasing and ongoing leasing shall create and maintain a system to establish a list of eligible potential tenants identified by Agency as eligible for preference pursuant to Health & Safety Code Section 33411.3, or successor statute. Owner shall contact those individuals on the list established by Owner and offer available Affordable Units in the Project to such individuals in accordance with this Agreement. (2) Leasing of Affordable Units to Tenants Whose Income Increases Beyond Eligibility Level. (a) Owner shall maintain the eligibility lists referenced in subparagraph c(t) immediately above. When an Affordable Unit becomes available, Owner shall contact individuals on the list and offer the available Affordable Unit to such individuals in accordance with this Agreement. Owner shall rent available Affordable Units to eligible tenants on a first-come, first-serve basis. Affordable Units that become available as a result of tenant vacation shall be rented to a new eligible tenant as soon as possible following the date the Affordable Unit becomes available. Owner shall notify the appropriate housing authorities on the list maintained by, and available from, the Agency, of any Affordable Units remaining vacant for more than thirty (30) days. (b) In the event a tenant in an Affordable Unit is determined to have an income greater than the affordability level set forth in this Agreement, Owner shall allow that tenant to remain in that rented unit and may treat that unit as a non- Affordable Unit and may increase the rent to the rent for the non-Affordable Units in the Project; 627/0140840012 3 69989 02 a08/15/00 11 I I! 1 I 1 1 J11 11 IIIIIIIIIIII�llllllllllllllll AIIIIIIIIIIII IIII IIIf III ii.2,aNr352s&anFl 9£ provided, however, that if Owner treats that unit as a non-Affordable Unit by raising the rent beyond the level permitted by the Agreement Containing Covenants, Owner shall rent the next available one-bedroom unit in the Project as an Affordable Unit with the rent for that Affordable Unit not to exceed the maximum rent provided for in the Agreement Containing Covenants. Owner shall notify Agency within fifteen (15) days of Owner's actions authorized by this subparagraph (b). (3) Verification and Monitoring. Owner shall execute, administer, and enforce a plan approved by Agency to verify the eligibility of prospective tenants and then to monitor the tenants' continuing eligibility. All costs associated with such plan and its execution, administration, and enforcement shall be borne by Owner. Owner shall bear all relocation expenses for all eligible and ineligible tenants and tenants admitted but later found to have income(s) in excess of the levels set forth in Paragraph l(a), to the extent such tenants are eligible for relocation assistance. During the period of time covered by this Paragraph 1, Owner, at its expense, shall submit, or cause its property manager to submit, to Agency, on or before the August 31 that follows the first June 30 after completion of construction of the Project, and no later than August 31 of each fiscal year thereafter, the annual reports required pursuant to Health and Safety Code Section 33418, as the same may be amended from time to time, with each such report to be in a form prescribed by Agency. Each annual report shall cover the immediately preceding fiscal year. Any fee imposed by Agency on Owner pursuant to Health and Safety Code Section 33418(c) shall be subject to the terms of Section 6.2.2 of the OPA. In addition, Owner and Agency acknowledge and agree that Agency is required to monitor the affordability of units in the Project and must verify the information contained in each annual report prepared by Owner in accordance with Health & Safety Code Section 33418 and submitted to Agency. Therefore, Owner shall submit with each annual Section 33418 report an audited statement prepared at Owner's cost and certified by Owner's financial officer verifying the information in that Section 33418 report. (4) Rental Agreement. The initial form rental agreement for the Affordable Units and any changes to such form rental agreement to be used by Owner shall be approved by Agency prior to the rental or leasing of any of the Affordable Units. (5) Remedy for Excessive Rental Charges (a) It shall constitute a default for Owner to knowingly and intentionally charge or accept rent amounts for the Affordable Units in excess of the amount provided for in Agreement. In the event that Owner knowingly and intentionally charges or receives such higher rental amounts, in addition to any other remedy Agency shall have for such default, Owner shall be required to pay to Agency the entire amount of rent received in excess of the amount permitted pursuant to this Agreement. (b) It shall constitute a default for Owner to knowingly and intentionally rent any Affordable Unit to a tenant who is not eligible for the particular Affordable Unit pursuant to the affordability requirements set forth in this Agreement. In the event Owner does knowingly and intentionally rent an Affordable Unit to an ineligible tenant, in addition to any other 627/014084-0012 4 69989 02 a08/15/00 111d Ed 111111111111111111111 R 4 of529e00R } equitable remedy Agency shall have for such default, Owner shall be required to pay to Agency an amount equal to (i) two [2] times the greater of(A) the total rent Owner received from such ineligible tenant, or (B) the total rent Owner was entitled to receive for renting that Affordable Unit, plus (ii) any relocation expenses incurred by Agency or City as a result of Owner having rented to such ineligible person. (c) It shall constitute a default for Owner to knowingly and intentionally rent any of the Affordable Units in violation of the leasing preference requirements set forth in Section l.c(1) of this Agreement. In the event Owner does knowingly and intentionally rent an Affordable Unit in violation of the leasing preference requirements, in addition to any other equitable remedy Agency shall have for such default, Owner shall be required to pay to Agency an amount equal to two (2) months of rental charges for the Affordable Unit with the highest rent. (d) THE PARTIES HERETO AGREE THAT THE AMOUNTS SET FORTH IN SUBPARAGRAPHS (a) THROUGH (c) IMMEDIATELY ABOVE (THE "DAMAGE AMOUNTS") CONSTITUTE A REASONABLE APPROXIMATION OF THE ACTUAL DAMAGES THAT AGENCY WOULD SUFFER DUE TO THE DEFAULTS BY OWNER SET FORTH IN SUBPARAGRAPHS (a) THROUGH (c), CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE EFFECTIVE DATE OF THIS AGREEMENT, INCLUDING THE RELATIONSHIP OF THE DAMAGE AMOUNTS TO THE RANGE OF HARM TO AGENCY AND ACCOMPLISHMENT OF AGENCY'S PURPOSE OF ASSISTING IN THE PROVISION OF AFFORDABLE HOUSING TO ELIGIBLE HOUSEHOLDS THAT REASONABLY COULD BE ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT. THE AMOUNTS SET FORTH IN THIS SECTION Lc(5) SHALL BE THE SOLE DAMAGES REMEDIES FOR THE DEFAULTS SET FORTH IN THIS SECTION Lc(5), BUT NOTHING IN THIS SECTION Ic.(5) SHALL BE INTERPRETED TO LIMIT AGENCY'S REMEDY FOR SUCH DEFAULT TO SUCH A DAMAGES REMEDY. IN PLACING ITS INITIAL AT THE PLACES PROVIDED HEREIN BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY HAS BEEN REPRESENTED BY COUNSEL WHO HAS EXPLAINED THE CONSEQUENCES OF THE LIQUIDATED DAMAGES PROVISION AT OR PRIOR TO THE TIME EACH EXECUTED THIS AGREEMENT. OWNER'S INITIALS: AGENCY'S INITIALS (6) Management. Owner shall obtain the approval of Agency's Executive Director, which approval shall not be unreasonably withheld, any management entity engaged by Owner to manage the Site, including Owner's self-management if applicable. Any change in such management team or entity for the Site, shall be approved by the Agency's Executive Director, which approval shall not be unreasonably withheld. 627/0140N-W12 _ 5 69989.02 e08115/00 I I II II II IIII II IIII II II� II iiri . ©5270rF K Y In the event of "Gross Mismanagement" (as that term is defined below) of the Project, Agency shall have the authority to require that such Gross Mismanagement cease immediately, and further to require the immediate replacement of the Property Manager. For purposes of this Agreement the term "Gross Mismanagement" shall mean management of the Project in a manner which violates the terms and/or intention of this Agreement to operate an affordable housing complex of the highest standard, and shall include, but is not limited to, the following: (a) Knowingly and intentionally leasing Affordable Units to ineligible tenants or tenants whose income exceeds the prescribed levels; (b) Allowing the tenants to exceed the prescribed occupancy levels without taking immediate steps to stop such overcrowding; (c) Failing to timely maintain the Project and the Site in the manner required by this Agreement; (d) Failing to submit timely and/or adequate annual Section 33419 reports as required by this Agreement; (e) Fraud or embezzlement of Project monies; and (f) Failing to fully cooperate with the Palm Springs Police Department in maintaining a crime-free environment on the Site. 2. Owner, on behalf of itself, its successors, its assigns, and each and every successor in interest to the Site, or any part thereof, hereby covenants and agrees that Owner and such successors and assigns: a. prior to the recordation of a Release of Construction Covenants issued by Agency for the improvements to be constructed on the Property, as provided in Section 3.16 of the OPA, shall not make any sale, transfer, conveyance or assignment of the Property or any part thereof or the buildings or structures thereon, and Owner shall not place or suffer to be placed on the Property any lien or encumbrance other than as permitted in Sections 3.13 and 3.14 of the OPA; b. that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall Owner itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property; C. that all deeds, leases, or contracts made relative to the Property, improvements thereon, or any part thereof, shall contain or be subject to substantially the following nondiscrimination or non-segregation clauses: 627/0140840012 69989.02 e08/15/00 — 6 IIIIII HIM IN1111111111111111111111III11111EiIII! r1.eN '6&£5 ,0�aR (1) In deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the land herein conveyed. The foregoing covenants shall run with the land." (2) In leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure, or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the land herein leased." (3) In contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, creed, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the land." d. to maintain in effect and to furnish or cause to be furnished to Agency duplicate originals or appropriate certificates of insurance policies as set forth in Section 6 and 7 herein and by this reference incorporated herein, and, in the event of total or partial destruction and subject to the rights of any lender, to effect restoration of the Project subject to the provisions of paragraph 3 of this Agreement; e. shall protect, maintain and preserve the improvements located on the Site, and shall not make any substantial alteration or modification to the architectural style and treatment of the facade of such improvements without the prior written approval of Agency; and f. shall indemnify, defend, and hold harmless Agency, City, and their respective officers, officials, members, employees, agents, and representatives from and against any loss, liability, claim, or judgment relating in any manner to the Site excepting only (i) any such loss, liability, claim, or judgment arising out of the intentional wrongdoing or active negligence of Agency, City, or their respective officers, officials, members, employees, agents, or representatives, and (ii) costs and expenses which are Agency's responsibilities pursuant to express provisions of the OPA. Owner, while in possession of the Site, and each successor or assign of Owner while in possession of the Site, shall remain fully obligated for the payment of property taxes and assessments in connection with the Site. The foregoing indemnification, 627/0140840012 _ 69989 02.08/15/00 IhII III III IIIIII I I I I II III 10 a�1 / %I II 00 defense, and hold harmless agreement shall only be applicable to and binding upon the party then owning the Site or applicable portion thereof. 3. The following covenants and conditions shall apply to repairs of damage: a. Obligation to Repair and Restore Damage Due to Casualty Required to Be Covered by Insurance or Covered by Insurance . Subject to subparagraph c below, if the Project shall be totally or partially destroyed or rendered wholly or partly uninhabitable by fire or other casualty required by this Agreement to be insured against by Owner, or is insured against by Owner whether or not required by this Agreement, Owner shall take the steps set forth in either(1) or (2) below: (1) Owner shall promptly proceed to obtain insurance proceeds and take all steps necessary to begin reconstruction and, immediately upon receipt of insurance proceeds, to promptly and diligently commence the repair or replacement of the Project to substantially the same condition as the Project is required to be maintained in pursuant to this Agreement, whether or not the insurance proceeds are sufficient to cover the actual cost of repair, replacement, or restoration, and Owner shall complete the same as soon as possible thereafter so that the Project can continue to be operated and occupied as an affordable housing project in accordance with this Agreement. Subject to Section 8.3 of the OPA, in no event shall the repair, replacement, or restoration period exceed eighteen (18) months from the date Owner obtains insurance proceeds unless Agency's Executive Director, in his or her sole and absolute discretion, approves a longer period of time. Agency shall cooperate with Owner, at no expense to Agency, in obtaining any governmental permits required for the repair, replacement, or restoration. If, however, the then-existing laws of any other governmental agencies with jurisdiction over the Site do not permit the repair, replacement, or restoration, Owner may elect not to repair, replace, or restore the Project by giving notice to Agency and paying Agency the amount set forth in subparagraph (2) below (in which event Owner will be entitled to all insurance proceeds but Owner shall be required to remove all debris from the Property), and thereafter Owner may reconstruct such other improvements on the Property as are consistent with applicable land use regulations and approved by the City, Agency, and the other governmental agency or agencies with jurisdiction. (2) Owner shall promptly (but in no event later than sixty [60] days) after the casualty event, repay to Agency an amount defined herein as the "Owner's Casualty Payment" The Owner's Casualty Payment shall be an amount calculated by (A) adding (i) the "Agency Affordability Covenants Acquisition Amount" defined in the OPA, plus (ii) the amount derived by multiplying the Agency Affordability Covenants Acquisition Amount by the percentage increase in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics, for Urban Wage Earners and Clerical Workers, Los Angeles-Long Beach-Anaheim Average, All Items (1984 = 100) (the "Index) (or if the Index is discontinued the most nearly equivalent index established for similar consumer price index purposes), dating from the date of Agency's disbursement to Owner of the Agency Affordability Covenants Acquisition Amount to the date of Owner's Casualty Payment pursuant to this subparagraph (2), and (B) multiplying the amount of clause (A) by the fraction in which the numerator is the number of full calendar years remaining in the affordability covenant period set forth in this Agreement and the 627/0140840012 _ g - 69989 02.08115100 III II IIIIII II IIIIII II I I II I II I II II III III 11 �NNd o8 2/eEntt denominator is twenty six (26). The following example illustrates the operation of this subparagraph (2): Example: The casualty event occurs in the eleventh (11t') year of the approximately 26-year affordability covenant period. The Index is 36%. The amount in subparagraph (b) is $450,000 plus the Index amount of $162,000, for a subtotal of$612,000, multiplied by the fraction 15/26 (or .577), which yields an Owner's Casualty Payment of$363,076.92. b. Continued Operations. During any period of repair, Owner shall continue, or cause the continuation of, the operation of the housing complex on the Property to the extent reasonably practicable from the standpoint of prudent business management. C. Damage or Destruction Due to Cause Not Required to be Covered by Insurance. If the improvements comprising the Project are completely destroyed or substantially damaged by a casualty for which Owner is not required to (and has not) insure against, then Owner shall not be required to repair, replace, or restore such improvements and may elect not to do so by providing Agency with written notice of election not to repair, replace, or restore within ninety (90) days after such substantial damage or destruction. In such event, Owner shall remove all debris from the Property. As used in this subparagraph (e), "substantial damage" caused by a casualty not required to be (and not) covered by insurance shall mean damage or destruction which is fifty percent (50%) or more of the replacement cost of the improvements comprising the Project. In the event Owner does not timely elect not to repair, replace, or restore the improvements as set forth in the first sentence of this subparagraph (c), Owner shall be conclusively deemed to have waived its right not to repair, replace, or restore the improvements and thereafter Owner shall promptly commence and complete the repair, replacement, or restoration of the damaged or destroyed improvements in accordance with subparagraphs (a) above and continue operation of the housing complex during the period of repair (if practicable) in accordance with subparagraph (b) above. 4. Owner shall not, whether voluntarily, involuntarily, or by operation of law, effect any transfer or assignment (as defined in Section 3.13 of the OPA), including any transfer of management responsibilities for the Project including as set forth in Section 3.13 of the OPA, without Agency's prior written approval, except as permitted by Section 3.13 of the OPA. The procedures to be followed in obtaining such approval, the criteria to be utilized by Agency in determining whether to grant such approval, and certain exceptions to the foregoing prohibitions and restrictions are set forth in Section 3.13. 5. The covenant set forth in Paragraph 2.a shall be for the period therein stated. The covenants set forth in Paragraphs I.a, Lb, Lc, l.d, 2.d, 2.e, 2.f, 3, and 4 shall remain in effect until May 7, 2026. The covenants contained in Paragraphs 2.b and 2.c shall remain in effect in perpetuity. 627/014084-0012 _ 9 69999 02.09/15/00 I III II IIIIII II IIIIII I II I II I IIIII IRII III ii:1 rya f52�©r, 6. Indemnification. Owner shall indemnify, defend, and hold harmless the Agency and City and their respective officers, officials, members, employees, agents, representatives, and volunteers from all loss, cost, and expense, including but not limited to any judgments against same and attorneys' fees and costs, arising out of any liability or claim of liability for personal injury, bodily injury to persons, contractual liability, and damage to property sustained or claimed to have been sustained arising out of acts or activities of Owner or Owner's officers, employees, agents, representatives, or volunteers, whether or not such act or activity is authorized by this Agreement; and Owner shall pay for any and all damage to the property of Agency and City, or loss or theft of such property, done or caused by such persons. Agency and City assume no responsibility whatsoever for any property placed on the premises. Owner further agrees to waive all rights of subrogation against Agency and City. The indemnification provisions set forth herein do not apply to any damage or loss caused solely by the willful misconduct of Agency or City or any of their respective officers, officials, members, employees, agents, representatives or volunteers. 7. Insurance Requirements. Owner shall procure and maintain during both construction and subsequent operation of the Project, and in all cases for the duration of this Agreement, insurance against claims for injury and property damage which may arise from or in connection with the performance of this Agreement. a. Minimum Scope of Insurance. Coverage shall be at least as broad as: (1) Commercial General Liability insurance to include products and completed operations, contractual, independent contractors, broad form property damage, fire, legal, and personal injury. (2) Comprehensive Automobile Liability insurance to include all autos owned, hired, and non-owned. (3) "Builder's Risk Property Insurance" to include Owner's improvements and betterment; and following construction but prior to Agency's disbursement of the Agency Assistance hereunder, Owner shall provide All Risk Property insurance to include Owner's improvements and betterment (continuously for the duration of this Agreement). (4) Workers' Compensation as required by the Labor Code of the State of California and Employers'Liability insurance. b. Minimum Limits of Insurance. Owner shall maintain limits no less than:\ (1) Commercial General Liabilitv: One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage. (2) Automobile Liability: Five Hundred Thousand Dollars ($500,000) combined single limit per occurrence for bodily injury and property damage. (3) All Risk Property: Following construction of the Project, ninety (90%) percent of the replacement value of the building(s) on the Property and Owner's improvement and betterment. 627/DM84-0012 - 10 - 69989.02 a08/15100 F R�0t 2e,, (4) Workers' Compensation and Employers' Liability: Workers' Compensation limits as required by the Labor Code of the State of California and Employers' Liability limits of One Million Dollars ($1,000,000) per accident. C. Deductibles and Self-Insured Retentions. The All Risk Property insurance and the Builder's Risk insurance shall each have a maximum deductible of$10,000. All other deductibles or self-insured retentions must be declared to and approved in advance by the Agency's Executive Director, who in his/her sole discretion may require the insurer to reduce or eliminate such deductibles or self-insured retentions with respect to Agency and City and Agency's and City's respective officers, officials, members, employees, agents, representatives, and volunteers; or Owner may be required to procure a bond guaranteeing payment of losses and related investigation, claims administration, and defense expenses. d. Other Insurance Provisions. The policies are to contain, or be endorsed to contain, the following provisions: (1) General and Automobile Liability Coverage. Agency and City and Agency's and City's respective officers, officials, members employees, agents, representatives, and volunteers are to be named as additional insureds with respect to liability arising out of the acts or activities performed by or on behalf of Owner. (2) Property Coverage (and Builder's Risk) If Inclusive. Agency shall be named as a loss payee on the policies and any settlement will accordingly include the Agency on the draft or check. (3) Workers' Compensation and Employers' Liability Coverage The insurer shall agree to waive all rights of subrogation against the Agency and City and Agency's and City's respective officers, officials, members, employees, agents, representatives and volunteers, for losses arising from work performed by Owner for the Agency. (4) All Coverage. 1 Owner's insurance coverage shall be primary insurance and non-contributory with respect to Agency and City and Agency's and City's respective officers, officials, members, employees, agents, representatives, and volunteers, and with respect to any insurance Agency and Agency's officers, officials, employees, agents, representatives, and volunteers may have. 2 Any failure to comply with reporting provisions of the policies shall not affect coverage provided to Agency and City and Agency's and City's respective officers, officials, members employees, agents, representatives, and volunteers. 3 No coverage shall be suspended, voided, cancelled, reduced in coverage or in limits, or non-renewed, except after thirty 627/014084-0012 - 6998902.08/15/00 I Ie II II II I I III II I I I 1 II II ! II 4©11Ia i UU WOW (30) days' prior written notice by personal delivery or certified mail has been given to Agency's Executive Director. 4 All insurance with respect to Agency and City and Agency's and City's officers, officials, members, employees, agents, representatives, and volunteers shall be "date of occurrence" insurance and not "claims made" insurance. 5 All insurance shall apply separately to each insured against whom claims is made or suit is brought, except with respect to the limits of the insurer's liability. e. Acceptability of Insurers. Insurance is to be placed with insurers with a BEST rating of no less than B+ Class X. The procuring of insurance by Owner shall not be construed as a limitation on Owner liability or as full performance of Owner's obligation under the Indemnification Provisions of this Agreement, including as set forth in Section 6 herein, and Owner understands and agrees that, notwithstanding any insurance, Owner's indemnification obligation, as set forth in Section 7 herein, extends to the full and total amount of any damage, injuries, loss, expense, costs, or liabilities suffered or incurred by Agency or City or Agency's or City's respective officers, officials, members, employees, agents, representatives, and volunteers. 8. All conditions, covenants and restrictions contained in this Agreement Containing Covenants Affecting Real Property shall be covenants running with the land, and shall, in any event, and without regard to technical classification or designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for the benefit and in favor of, and enforceable by Agency, its successors and assigns, and the City and its successors and assigns, against Owner, its successors and assigns, to or of the Site or any portion thereof or any interest therein, and any party in possession or occupancy of said Site or portion thereof. 9. In amplification and not in restriction of the provisions set forth hereinabove, it is intended and agreed that Agency shall be deemed a beneficiary of the agreements and covenants provided hereinabove both for and in its own right and also for the purposes of protecting the interests of the community. All covenants without regard to technical classification or designation shall be binding for the benefit of Agency and such covenants shall run in favor of Agency for the entire period during which such covenants shall be in force and effect, without regard to whether Agency is or remains an owner of any land or interest therein to which such covenants relate. Agency shall have the right, in the event of any breach of any such agreement or covenant to exercise all the rights and remedies, and to maintain any action at law or suit in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant. 10. Both Agency and its successors and assigns, and Owner and the successors and assigns of Owner in and to all or any part of the fee title to the Site, shall have the right to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants, 627/0140840012 6998902 a08/15/00 I - 12 - II III NI II IIII IIIII IIII III I IR 16 12000 2 oof 5 OOA 1/0 27 conditions, or restrictions contained in this Agreement Containing Covenants Affecting Real Property without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust, or any person or entity having any interest less than a fee in the Site. That covenants contained in this Agreement Containing Covenants Affecting Real Property, without regard to technical classification shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having any interest in any other such property. IN WITNESS WHEREOF, Agency and Owner have entered into this Agreement as of the Effective Date. 627/0140840012 69989.02 ao8/15100 I - 13 -I III II II I III IIIII III I IIII I II !� II l lr 6 27 0 3 ofygnEarl "Agency" COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS t t: a 4 Chairman / Agency Secretary Approved as to form: RUT�AN/ & TUCKER, LLP AAtt( n4s for the Agency "Owner" ROSE MIHATA, an individual, and SCOTT TIMBERLAKE-, an individual �j Rose ata Scott Timberlake Cale( 6_01lu STATE OF e*hW0RNf-tY ) '_ t'v' u','".aVED E7 11 Wt6" bG'udG ��Ci9117�yy7 C� @/� M-U LT/VOA W ss. �%,macr n7 RF.55 P30)0.�_8.��® Oo a'd�Ql� COUNTY OF RW4�-- ) 7�a 627/014084-0012 69989 02.09/15/00 I -I14 - IIIIIIIIIIIIIIIIIIIIIIIIII�I IIIIIIIIIIIIIh IIIIII 11ir11N4 of 27riA On 11000 before me, the undersigned, a Notary Public, in and for said State and County, personally appeared S C-07 P. personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public (SEAL) OFFICIAL SEAL LQNfRd L./ASOER NOTARY PUBLIC-CREGON COMMISSION NO. 326975 MY COMMISSION EXPIRES SEPT.9, 2003 STATE OF CALIFORNIA ) ) ss. COUNTY OF RIVERSIDE ) /7 On ( CG<' , 1 2 0 0 C) before the undersi Red, a Notary Public, in and for said Sta�e'and County, personally appeared E a met t; personally known to me •(oi-proved—to—me—on—the-basis—of--satisfaetery—evidence} to be the person whose name(4 l�/are subscribed to the within instrument acknowledged to me that e sh h hey executed the same in hi e their capacity(ies}, and that by hi /�1iel'r/their signature(91 on the instrument the personvi, or the entity upon behalf of which the person(o) acted, executed the instrument. WITNESS my hand and official seal. l / Notary Public (SEAL) () o EL INE L.WEDEKIND� (,�} . 1206934 NOTARY PUBLIC-CALIFORNIA0 RIVERSIDE COUNTY 0 r + roax COMM.EXP.FES 3,2003 STATE OF CALIFORNIA ) 627/014084-0012 6998902 a08/15/00 I — I5 II IIII IIII111111 I IIII I II hi III 11; 7/20 0 08 ULIA ss. COUNTY OF RIVERSIDE ) On before me, the undersigned, a Notary Public, in and for said State and County, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary Public (SEAL) 627/01Q84-0012 69989 02 a08/15/00 II ' 16 — II Il� I�IIIIIII IIIII I� IIII II ��i II tt C0a5 of 27r EXHIBIT "A" TO ATTACHMENT NO. 5 TO AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY LEGAL DESCRIPTION OF THE PROPERTY ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF RIVERSIDE, CITY OF PALM SPRINGS, DESCRIBED AS FOLLOWS: ALL THAT PORTION OF THE SOUTHWEST QUARTER OF SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF. SAID LAND IS SHOWN AS LOTS 41 AND 42 ON A PLAT OF SUBDIVISION OF SAID SECTION DATED NOVEMBER 1948, AND FILED IN THE OFFICE OF THE BUREAU OF INDIAN AFFAIRS BASED UPON A SURVEY BY ROBERT A . WHER, SURVEYOR, UNITED STATES INDIAN SERVICE. 627/014084 0012 - 16 - �1 ¢ 69989.02.09/14/00 IIIIIIIIII IIII IIIIIIIiIII III�II III llr0' 87d1R 1 e{ 8-09 TPA 011-GG,3 M Z" POR..SW//4SEC./4T.4SR.4E o//-o/7 o Al / of 2 0//-032 OB U'Z: r. i� I ♦ a -� Y .n � — (���E�X I o.rrs . Iat ri SO�SJT /2 % a POZOPM,�/ 40 59 :3E1zac i 49 fli.c Laa Act 4.00Ic3 0 IA6 ' cQi rPa @ �w 01 7 TFA a/1-035 '! r RN/NU-- Par 39 For/26lu J - v/Jr M "•" � � I Por/25 Par 4I I Per /23 m � 5/3 </oA 53 o.3eAas 5415 \ s ��- vi I ' ,Iwrr locevolvev ♦ ± ®rP/a_! ..:o, `a63AN I c e S9 SsnP • I �'`oo-u ou-u .a a a P/ ex094 Par 2 o..uc osoc �. 62 .. oi,_ox • I I I I 64 09 n, l ,'s /27 x $. 09 L 65 EX I - - /. /Act .5-� O l -14 •, /5 14, RAMON '.w .-:�. °w ROAD 22 1.3� Oam iLa 5-//-60 /4 ti' weer.w..o/a, S3, ho..Anva/I PM-62/59-60 Parcel Mop Na /3/57 vrr R/933/D.,3, 53/96-99 /2 MB/34/8-9 Tracl No.J5687 CM 49/9-362/90B0 / /84 A55£SSO45 MAP BCY PG M:B. /6//75-77 Traci No. /9,467-3 RIVERSIDE- CRJMY, CALIFCA(lF I E.x1 M ATTACHMENT NO. 6 RELEASE OF CONSTRUCTION COVENANTS [SEE FOLLOWING PAGES] 627/0140840012 _ 6998902 a08/15/00 I -I IIIII IIIIIIII IIIIIII IIIIIIIIII IIII III IIIII!1II IIII 11'07 2a04f 87OUR RECORDED AT THE REQUEST OF AND WHEN RECORDED RETURN TO: Community Redevelopment Agency of the City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92263 Attn: Executive Director (Space Above Line for Recorder's Use) (Exempt from Recording Fee per Gov. Code§6103) [Note To Recorder: Record As Partial Release of Agreement] RELEASE OF CONSTRUCTION COVENANTS WHEREAS, ROSE MIHATA, an individual, and SCOTT TIMBERLAKE, an individual (collectively "Participant"), is the owner of fee title to the real property legally described in Exhibit "A" hereto (the "Property"); and WHEREAS, by an Owner Participation Agreement (hereinafter referred to as the "Agreement") dated June 7, 2000, by and between the Participant and the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS, a public body, corporate and politic ("Agency"), Participant has redeveloped the Property according to the terms and conditions of said Agreement; and WHEREAS, pursuant to Section 3.16 of the Agreement, promptly after completion of all construction work to be completed by Participant on the Property, Agency shall furnish Participant with a Release of Construction Covenants upon written request therefor by Participant; and WHEREAS, the issuance by Agency of the Release of Construction Covenants shall be conclusive evidence that Participant has complied with the terms of the Agreement pertaining to the redevelopment of the Property; and WHEREAS, Participant has requested that Agency furnish Participant with the Release of Construction Covenants; and WHEREAS, Agency has determined that the redevelopment of the Property has been satisfactorily completed as required by the Agreement; NOW, THEREFORE: 627/014084-0012 69989.02 a08/15/00 111111111111 III 1I 1 If II1I I 111111 11 11 2000-44598o00R 1. As provided in the Agreement, Agency does hereby certify that redevelopment of the Property has been fully and satisfactorily performed and completed, and that such redevelopment is in full compliance with said Agreement. 2. This Release of Construction Covenants shall not constitute evidence of compliance with or satisfaction of any obligation of Participant to any holder of a mortgage, or any insurer of a mortgage, securing money loaned to finance construction work on the Property, or any part thereof. Nothing contained herein shall modify in any way any other provision of said Agreement. 3. This Release of Construction Covenants shall not constitute evidence of Participant's compliance with those covenants in the Agreement that survive the issuance of this Certificate, or of the covenants in the Agreement Containing Covenants Affecting Real Property recorded on August , 2000, as Instrument No. in the Official Records of Riverside County. 4. This Release of Construction Covenants is not a Notice of Completion as referred to in California Civil Code Section 3093. IN WITNESS WHEREOF, Agency has executed this Certificate as of this day of 2 COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF PALM SPRINGS By: Executive Director Attest: Assistant Secretary 627/0140840012 _ 69989 02.08/15/00 II I N� II III III I I III II II II II! 1 L0 N 21 f' 270HR 1 II II II I III I I I I II II II II i i, 7t 2,of 22 a CONSENT TO RECORDATION ROSE MIHATA, an individual, and SCOTT TIMBERLAKE, an individual, owners of fee title to the herein described real property, hereby consents to the recordation of the foregoing Release of Construction Covenants Against the real property herein described. L, kjj,—,,24 ROSE MIHATA, an individual SCOTT TIMBERLAKE, an individual 627/0W84W12 69989.02 a08/15/00 I I III III II I IIIIII I I I I II I III �I II IIII 1 i IN -445436 0 0£S 2 P703Fl STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDE ) On (_ r�� 2nn a before me, � 9siL �bfX/nJ 7= ��er personally appeared - % � (2"— personally known to me-,(Gr—proved--to—me-.on—the-basis—of--satisfaetory--evidenee)---to be the person(�� whose name( s)'are subscribed to the within instrument and acknowledged to me that he(she/they executed the same in hisCi9their authorized capacitykies); and that by hi h�their signature(s� on the instrument the person(9k or the entity upon behalf of which the personR acted, executed the instrument. Witness my hand and official seal. ELAINE L.WEDEKIND U " + COMM.#1200saaZ ` NOTARY PUBLIC-CALIFORNIA 2 RIVERSIDE COUNTY Notary Public '<ILI ¢onn` COMM.EXP.FEB.3,2003 1 [SEAL] 627/01QB4-0012 _5_ 69989 02.08/15/00 2@FJ& 44542& , 4�;2 0af , � A ' ♦ y a STATE OF�tLIBiNI ) m U ss. COUNTY OF PUVER—SIDE ) On A'v; u�:ti 2 00 before me, c)V v I L a ��CI 6— personally appeared c - 0 i ylM,,bQ-crIUJCS2 personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] OFFICIAL SEAL �4 LORRI L. AG E)ER NOTARY PUBLIC-ORFSON COMMISSION NO. 326975 MY COMMISSION EXPIRES SEPT.0,2003 627/014084-0012 69989 02 a08/15/OD I I IIIIIIIIIIIIII IIIIII II IIII II III III 11/�C0 5 £©U,cLDA r EXHIBIT "A" TO RELEASE OF CONSTRUCTION COVENANTS ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF RIVERSIDE, CITY OF PALM SPRINGS, DESCRIBED AS FOLLOWS: ALL THAT PORTION OF THE SOUTHWEST QUARTER OF SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF. SAID LAND IS SHOWN AS LOTS 41 AND 42 ON A PLAT OF SUBDIVISION OF SAID SECTION DATED NOVEMBER 1948, AND FILED IN THE OFFICE OF THE BUREAU OF INDIAN AFFAIRS BASED UPON A SURVEY BY ROBERT A . 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